Builders and Contractors Exchange
Weekly Bulletin: 14 sept 2007
Be Careful To Avoid Family Responsibilities Discrimination
By: Joy E. Weber
Employers should be aware of a fairly new but growing area of litigation between employers and employees called “family responsibilities discrimination.” Family responsibilities discrimination occurs when an employer discriminates against an employee based on that employee’s responsibility to care for a family member, usually children but also including aging parents or other family members. Even in a male-dominated industry, employers may be open to liability for family responsibilities discrimination.
Family responsibilities discrimination (FRD) generally involves some type of stereotyping, such as the idea that men will not care for children because that is primarily a woman’s role. Employers are held liable when employees are able to prove that the employer made personnel decisions based on the employer’s false assumptions and stereotypes about how the employee/caregiver will or should act in carrying out the employee’s responsibilities in caring for family members. Any personnel decision can be subject to litigation, including any form of discipline, termination of employment, failure to promote, or creating a hostile work environment.
It is important to note that the growing prevalence of FRD claims does not mean that employers cannot discipline or dismiss an employee who is not meeting the employer’s job requirements. Employees are still obligated to perform their job duties in keeping with the requirements of that employee’s position. For example, employees with family responsibilities may still be required to comply with the employer’s attendance policy.
The problem is created when an employer uses the employee’s family responsibilities as the basis for a personnel decision, rather than the actual requirements of the job. As an example, an employer may discipline or dismiss an employee with family responsibilities who has violated the employer’s attendance policy, as long as the policy is applied consistently. Although the employer can terminate the employee for failing to comply with the employer’s attendance policy, the employer cannot terminate the employee because the employer anticipates that the employee will continue to have issues with family responsibilities.
To avoid any possible claims of FRD, employers should be sure to avoid even the appearance that a personnel decision was based on an employee’s parental or other family care giving obligations and is instead based entirely on the merits of the situation. In addition, before taking action, the employer must be sure that any employees without family responsibilities who are in the same situation are subject to the same treatment.
Questions?
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.