New study finds Family Responsibilities Discrimination cases increasing
A new report by the Center for WorkLife Law (at the University of California Hastings College of the Law) has examined the growing trend of lawsuits filed by employees alleging that they were discriminated against because of their family caregiving responsibilities. As a culmination of three years of data collection on maternal wall lawsuits, the “family responsibilities discrimination” (FRD) cases involve workers – both women and men – who fulfill typically mothering or caregiving roles to family members.
The study, using 613 cases of caregiver discrimination, has identified lawsuits involving claims of sex stereotyping, “sex-plus” bias, pregnancy bias, hostile work environment, retaliation, disparate treatment, disparate impact, Family Medical Leave Act interference, discrimination and retaliation, Title IX violations, Employee Retirement Income Security Act violations, ADA associational discrimination, Equal Pay Act violations, breach of contract, tortious interference with contract, wrongful discharge.
This report empirically examines the ideas found in the germinal theoretical article by Joan Williams and Nancy Segal, “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” (Williams & Segal, 2003).
The main findings:
1. Working-class families face inflexible schedules that clash with family needs.
2. Mandatory overtime leaves single mothers, divorced dads, and tag-team families in jeopardy of losing their jobs.
3. Working-class men often are unable or unwilling to bring up their family needs with their employers. Instead, they suffer in silence or to try to “come in under the radar screen” — with unhappy results.
4. Many workers are one sick child away from being fired. Work/family issues are core union issues: empowering workers to organize or exercise their rights requires unions to protect their members from the work/family conflicts they will inevitably face.
5. Employers’ inflexibility may well defeat their own business needs.
6. Flexibility is possible in working-class jobs.
Some startling snippets:
While only 6% of Swedish two job families with children work in excess of 80 hours/week, over two-thirds (64%) of U.S. families do.
Nearly three-quarters of working adults say they have little or no control over their work schedules.
68% of working-class families have two weeks or less of vacation and sick leave combined.
For many workers, the ability to make a simple phone call is a crucial work/family issue.
“For most working class families, child care is often patched together in ways that leave parents anxious and children in jeopardy.”
Underpinnings of the growth
According to the report:
The number of FRD cases has grown from a total of eight in the 1970s, when the first case was heard in US courts (Phillips v Martin Marietta Corp, USSCt, 3 EPD ¶8088) to 358 in the first half of the 2000s. In Phillips, an employer was sued for barring females with school-aged children from applying for jobs that male employees with school-aged children occupied. While the employer claimed that it did not discriminate against females because it allowed women with no children to apply for those positions, the Supreme Court ruled that the employer still discriminated against women who were also mothers. In the last decade (1996-2005), the number of family responsibilities discrimination (FRD) cases filed grew nearly 400% from the previous decade, from 97 cases to 481.Analyses show that rapid growth in FRD lawsuits began in the 1990s and continues today. Increases are correlated with: (1) media coverage of high-profile lawsuits involving maternal wall discrimination; (2) growth in the number of employed mothers; (3) diffusion of information about FRD cases amongst the legal profession; and (4) changes in law making it more attractive to file discrimination lawsuits. FRD lawsuits have now been heard in 48 of 50 states and the District of Columbia. In addition, the report noted that more FRD cases have been filed by non-professional employees than by professionals, although the greatest number of cases in any single occupational category is in managerial/professional jobs, followed closely by those in technical, sales and administrative positions. By industry, the largest number of cases have been filed by employees working in service industries, followed by public administration.
Plaintiffs are more likely to win FRD lawsuits than other types of employment discrimination cases, the study finds. The mean award is $768,976, with the median just over $100,000 – the largest award to date is $25 million. The lawsuits analyzed in the report make a strong case that companies' effective handling of workers' caregiving responsibilities is an issue of risk management and companies that mismanage their work/life programs tend to fare poorly in court.
The study also revealed that small, local businesses make up the largest component of companies sued for family caregiver discrimination. Larger companies, however, are increasingly facing such lawsuits. Even companies publicly recognized for progressive work-family policies and practices and for treating employees well have faced FRD charges. Among companies sued for discriminating against workers with family responsibilities are nearly 30 that have been designated as "Best Companies to Work For" by Working Mother magazine or have been touted by Fortune's "Most Admired" list as amongst the best in the nation for treating employees well.
Source: Full reports
1. “One Sick Child Away From Being Fired: When “Opting-Out” Is Not an Option
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