Vol. 80, No. 11, November 2007
ue in part to a more than 30 percent increase in pregnancy discrimination charge filings with the Equal Employment Opportunity Commission (EEOC) from 1992 through 2005,1 "family responsibility discrimination" or "caregiver discrimination" claims have been steadily increasing and likely will continue to increase. The family-related responsibilities placed on today's workforce have changed quite dramatically when compared to 30 years ago. Increasingly, men and women may have to care for children, elderly parents or other relatives, or a family member with a serious health condition or disability or deal with other family-related responsibilities. As the baby boom generation ages and there is a greater reliance on the financial support provided by two incomes, this trend is expected to continue. (See Figure 1.)
Although gender has been a recognized basis for workplace-related discrimination, retaliation, and hostile environment claims under Title VII of the Civil Rights Act of 1964 (Title VII)2 and the Wisconsin Fair Employment Act (WFEA)3 for many years, the new reality that most employees shoulder greater family responsibilities has led to the development of a new style of employment law claim. These claims commonly are called family responsibility discrimination (FRD) claims or, as the EEOC calls them, caregiver discrimination claims. What differentiates these claims from traditional discrimination or retaliation claims is that FRD claims are, in most cases, not explicitly created by statute.4 Rather, they arise under existing civil rights statutes in a new context - one created by the tension between the claimant's family and caregiving responsibilities and the claimant's job-related responsibilities.
In Wisconsin, FRD claims may arise under Title VII as amended by the Pregnancy Discrimination Act (PDA)5 or under the WFEA, which protect employees from disparate treatment because of "sex" or "pregnancy," among other things. FRD claims also may be asserted under other federal and state statutes. The federal Family and Medical Leave Act of 1993 (FMLA)6 and the Wisconsin Family and Medical Leave Act (WFMLA)7 may provide the basis for a claim against an employer for interference with the employee's rights to family leave when a request to take care of a child or parent with a serious health condition is denied and similar leaves have been routinely granted to other employees. Further, the Americans with Disabilities Act of 1990 (ADA)8 may provide the basis for an "association" claim when the employee is terminated, demoted, or passed over for promotion due to the employee's responsibilities to care for a disabled parent, child, or other relative. Here are some examples of recent FRD claims:
Studies Point to How FRD Claims Will Continue
Recent studies cited in the EEOC Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibility, at www.eeoc.gov/policy/docs/caregiving.pdf, point to factors affecting the rise in family responsibility discrimination claims:
- The number of women in the labor force increased by 16 percent between 1970 and 2005.
- The employment rate today for women with young children is almost twice that of their 1975 counterparts.
- People in the "sandwich generation" - between the ages of 30 and 60 - play two roles: caring for elderly relatives and caring for their own children.
- Almost 33 percent of families have at least one disabled family member and about 10 percent have a child with a disability.
- Between 1965 and 2003, the amount of time that men spent caring for children nearly tripled and the time they spent on household chores more than doubled.
- A sales manager won a $1 million-plus Title VII jury verdict in the Western District of Wisconsin because her supervisor admitted that, although she was qualified for promotion, he did not promote her because the sales manager had children and the supervisor assumed she would not want to relocate her family.9
- An Ohio jury ordered a retail employer to pay more than $2 million in damages for pregnancy discrimination to a female manager. The employer failed to promote the manager despite consistent assurances that she was among the region's top managers. Trial testimony revealed that several less-qualified men, women without children, and women who assured management they were done having children were promoted instead.10
- A male custodian won an $11.65 million verdict after suing his employer, an Illinois hospital, alleging interference with his FMLA leave rights and retaliation. The employee took FMLA to care for his elderly parents, who were in failing health. He presented evidence that, after he took the leave, the hospital established new performance standards that were unevenly applied to other employees but rigidly enforced on him, resulting in his subsequent termination.11
- A school psychologist brought a civil rights claim under 42 U.S.C. § 1983 and an equal protection claim because she was denied tenure after having a child, despite outstanding performance reviews. The plaintiff said the employer made stereotypical assumptions about her ability and commitment to return to work after having a child. Evidence included comments made by school district personnel that it was not possible for a person to be a good mother and have the plaintiff's position and questioning how she could perform the job with "little ones."12
- A male police officer was awarded more than $600,000 in damages after he was denied FMLA leave to care for his wife and newborn child after they left the hospital following a difficult birth. The officer was told that his wife would have to be "in a coma or dead" for him to qualify as the family's primary caregiver.13
- The Eighth Circuit upheld a judgment in excess of $600,000 for an employee who was subjected to a hostile work environment by her manager both during her pregnancy and after she returned to work from maternity leave, including comments such as "you better not be pregnant again."14
- A male teacher sued under Title VII claiming that he was impermissibly denied a one-year childrearing leave that was available to female employees, at their option, under the collective bargaining agreement and that, as a result of the denial of the leave, he was forced to resign from his job.15
Family and Caregiving Responsibility Give Rise to FRD Claims
Although an employee's claim against his or her employer may be based on an employee's gender, association with a disabled family member, or previous request for or taking of job-protected leave under the FMLA, it is the employee's family or caregiving responsibilities that make the claim an FRD claim. "[FRD] is, very simply, discrimination against employees based on their obligations to care for family members."16 Although not a new phenomenon, FRD claims are being asserted at a greater pace in the employment-law arena.
Daniel J. Finerty, Marquette 1998, counsels management on preventing and litigating family responsibility discrimination and other labor and employment litigation in state and federal courts and administrative agencies. He is a member of the State Bar Labor and Employment Law and Business Law sections, the ABA, and the Milwaukee Bar Association. He is in practice with Krukowski & Costello S.C., Milwaukee.
In 1971 the U.S. Supreme Court decided one of the earliest FRD cases when it reversed a decision by the Fifth Circuit. The Fifth Circuit had upheld a Florida district court's grant of summary judgment in favor of an employer that denied job opportunities to women who had preschool-age children while allowing men with preschool-age children to apply for the same jobs. The U.S. Supreme Court reversed, holding that the Fifth Circuit erred in reading Title VII to permit "one hiring policy for women and another for men - each having pre-school-age children."17 Since then, denying a woman a promotion because of stereotypical assumptions about obligations to family has been recognized as discrimination because of sex.
Twenty years later, a similar issue in a different context confronted the Supreme Court in an appeal of the dismissal of a class action case. The employer had a fetal-protection policy restricting all women (with limited exceptions) from jobs involving actual or potential lead exposure exceeding applicable workplace safety standards. The Supreme Court reversed both the Eastern District of Wisconsin and the Seventh Circuit Court of Appeals and held that Title VII (as amended by the PDA) forbids sex-specific fetal protection policies that are facially discriminatory on the basis of sex.18 The Supreme Court reasoned that the employer's policy did not provide any protection for men despite record evidence of the debilitating effects of lead exposure on the male reproductive system.
The early 1990s brought the passage of several new federal statutes, effectively laying the groundwork for the recent increase in FRD claims. The goal of the ADA19 is not only to afford disabled individuals greater access to the workplace but also to protect nondisabled employees from discrimination based on their association or relationship with a disabled individual (commonly referred to as "association claims"). The Civil Rights Act of 199120 amended Title VII by providing employees the right to a jury trial and compensatory and punitive damages in claims arising under the latter statute and the ADA. The federal FMLA,21 passed in 1993, entitles employees to unpaid leave for, among other things, the birth and care of the employee's child, adoption or foster care of a child, or the care of an immediate family member with a serious health condition. The FMLA authorizes employees to file suit against an employer for any interference with their right to job-protected leave or for otherwise discriminating or retaliating against an employee for taking family or medical leave.
While Wisconsin has had statutory coverage for disabled22 individuals since 1965 in the WFEA, the Wisconsin Legislature provided for additional employee protection in 1987 when it passed the WFMLA.23 The WFMLA contains leave entitlement that is similar, but not identical, to that included in the later-passed federal FMLA. As this pattern of federal and state laws governing the Wisconsin workplace grew, the stage was set for the increase in FRD litigation.
Further impetus for this trend occurred in 2003 when the U.S. Supreme Court affirmed a Ninth Circuit decision reversing a district court's grant of summary judgment to an employer in an FMLA case. The plaintiff in Nevada Department of Human Resources v. Hibbs was a male employee who took FMLA leave to care for his wife, who had been in a car accident. The employee was terminated when his FMLA leave ran out. The Supreme Court's majority opinion, written by the late Chief Justice Rehnquist, reversed the district court's dismissal of the employee's claim and foreshadowed the current trend:
"Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis."24 (See Figure 2.)
Chief Justice Rehnquist's Own Family Care Experience
Regarding Justice Rehnquist's opinion in the Hibbs case, the New York Times reported:
"… like conservative judges in other cases, [Chief Justice Rehnquist] saw the issue through the prism of family values - and, perhaps, his own personal experience. At one point in his career, Rehnquist had to care for his own wife, who was terminally ill with cancer. As reported by Linda Greenhouse in [The New York Times], his daughter, Janet, was a single mother who had a demanding job and apparently relied on his help on occasion. Several times during the term the Hibbs case was argued Rehnquist left the chambers early to fetch his granddaughters from school."
- Eyal Press, Family-Leave Values, N.Y. Times, July 29, 2007, at § 6, available at 2007 WLNR 14516160.
With the Supreme Court's bold statements in Hibbs, any lingering doubts about whether the FRD trend was real, or applied to both sexes, appeared settled.
Consistent with this trend and the Supreme Court's statement in Hibbs, the EEOC issued "Enforcement Guidance - Unlawful Disparate Treatment of Workers with Caregiving Responsibilities" on May 23, 2007.25 The EEOC issued the guidance because:
"Changing workplace demographics, including women's increased participation in the labor force have created the potential for greater discrimination against working parents and others with caregiving responsibilities. The new guidance is intended to assist employers, employees, and Commission staff in determining whether discrimination against persons with caregiving responsibilities constitutes unlawful disparate treatment under federal EEO law."26
The EEOC noted that FRD claims may arise under any number of federal laws in addition to Title VII and the ADA. Such laws include the FMLA, the Employee Retirement and Income Security Act of 1974,27 the Fair Labor Standards Act of 1938,28 or any other statute that may confront discrimination or retaliation against a caregiver.
The EEOC sought to make clear that the guidance was "not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment" may violate federal law, highlighting that it is the victim and circumstances that define the claim as an FRD claim, rather than any statute that might later be used to redress an alleged violation.29
Lessons for Lawyers
Because there is no protected category in Wisconsin for persons engaged in family responsibilities, any alleged unlawful employer conduct must be tied to a violation of a particular federal, state, or local mandate.
Using Title VII as an example, the traditional methods of proof still apply; however, some notable trends have developed in FRD litigation.30 FRD discrimination claims often are supported by comments by decision-makers, supervisors, or managers. In Lust v. Sealy Inc., the plaintiff's claim that her employer's failure to promote her amounted to sex discrimination was buttressed by evidence of comments made by her manager. In addition to making boorish jokes about women, the plaintiff's manager admitted that he did not recommend her for the disputed promotion because she had children and he assumed she would not want to relocate her family to Chicago. These admissions earned strong condemnation from Judge Posner:
"Realism requires acknowledgement that the average mother is more sensitive than the average father to the possibly disruptive effect on children moving to another city, but the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics. It would have been easy enough for [Lust's supervisor] to ask Lust whether she was willing to move to Chicago rather than assume she was not and by so assuming prevent her from obtaining a promotion that she would have snapped up had it been offered to her."31
Lawyers should advise their business clients that they may be held liable when an employment decision is accompanied by stereotypical comments such as "women were made to have kids" or "men should not try to be caregivers." Business clients should be made aware of the continued risk of operating under assumptions or stereotypes and of the fact that offhand comments may provide support for later discrimination or retaliation claims.
Other, less-obvious factors may reveal the potential for an FRD claim. An employee who is demoted for not "giving 110%" or who has a telecommuting or flex-time arrangement taken away might not have any basis for a claim after a brief review of the facts. However, lawyers should question their business clients in more depth. Has the employee recently accepted caregiving responsibilities for a disabled family member? Has the employee recently revealed a pregnancy? Has the employee recently given birth to a child or returned from maternity leave? Has the employee recently submitted a request for leave or returned from leave to care for a child, spouse, or parent with a serious health condition? The potential for unforeseen FRD claims dictates additional consideration of these issues in some circumstances.
When the answers to any of the foregoing questions are "yes," lawyers should ensure that their business clients are using objective performance data, like sales numbers or other sound performance indicators, when making employment decisions, as opposed to subjective concerns that may be objectively unsupported. Lawyers should ensure that a defensible legitimate business reason exists for any action in order to provide a basis for a dispositive motion later if the employment action is challenged.
The circumstances and atmosphere of a workplace will be at issue in any litigation. Lawyers should advise their business clients that prevention now may reduce the possibility or the size of any potential FRD claims. Was the workplace family friendly or did decision-makers make comments intended to dissuade women from having children or to dissuade men from caring for their children? Were employees returning from family leave after caring for elderly parents routinely demoted to lesser, hourly-wage positions unlike similiarly-situated coworkers who took leave and were not demoted?
Lawyers should advise their business clients to take other reasonable steps to deal with the growing risks in this area. First, advise business clients to consider modifying existing antidiscrimination policies to cover family responsibility discrimination and institute open door policies to encourage employees to bring potential problems to the employer. Second, discuss whether clients should provide additional training regimens to ensure that front-line supervisors and managers are trained to prevent potential FRD claims when making hiring, promotion, demotion, and termination decisions. After training, business clients should review their existing leave policies and how they are applied in practice. As an example, a comparison of the rate at which medical leave requests and family leave requests are granted may reveal discrepancies that need attention. Consistent application of leave policies should be the rule and, when a deviation occurs, the legitimate business reason(s) for the deviation should be documented. Third, advise clients how to avoid retaliation claims by ensuring that employees are not treated differently after engaging in protected activity, for example, by submitting requests for family leave to care for an elderly or disabled parent. Even subtle, but nevertheless adverse, changes in employment that lack a sound business justification may provide the basis for a retaliation claim. As an example, a minor change to an employee's work schedule that may adversely affect the employee's childcare arrangements may provide the basis for a retaliation claim.32
FRD claims have likely developed as a result of a greater struggle to balance family and work life and the changing demographics of the American workplace. All signs indicate that the rise in FRD claims will continue. To properly advise their business clients, lawyers need to recognize potential claims and provide solutions if problems arise.
1Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1997 - FY 2006, www.eeoc.gov/stats/pregnanc.html; Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1992 - FY 1996, www.eeoc.gov/stats/pregnanc-a.html.
2Title VII - Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000h-6.
3Wisconsin Fair Employment Act, Wis. Stat. § 111.321.
4The two existing exceptions to this rule are laws in the District of Columbia and Alaska. See D.C. Code. Ann. § 2-1402.11 (2007) ("It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived: … family responsibilities …"); Alaska Stat. § 18.80.200 (2006) ("Therefore, it is the policy of the state and the purpose of this chapter to eliminate and prevent discrimination in employment, … because of … parenthood."). Also, in 2000, President Clinton signed Executive Order 13152, which prohibits discrimination against federal government employees based on an employee's status as a parent.
5Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
6Family and Medical Leave Act of 1993, 29 U.S.C. § 2615.
7Wisconsin Family and Medical Leave Act, Wis. Stat. § 103.10(11).
8Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (b)(4).
9Lust v. Sealy Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), affirmed as modified by 383 F.3d 580 (7th Cir. 2004). The Seventh Circuit reduced the amount of damages.
10Lehman v. Kohl's Dep't Store, No. CV-06-581501 (Cuyahoga County, Ohio) (May 25, 2007). The case was settled after trial.
11Schultz v. Advocate Health & Hosp's Corp., 2002 WL 32154732 (N.D. Ill).
12Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) (vacating district court's dismissal and remanding for trial claims against two individual defendants).
13Knussman v. Maryland, 272 F.3d 625, 629-30 (4th Cir. 2001) (verdict reduced on appeal).
14Walsh v. National Computer Sys. Inc., 332 F.3d 1150 (8th Cir. 2003). Notably, the Eighth Circuit rejected the defendant's argument that the plaintiff's claim for parent or caretaker discrimination was not covered by Title VII. The Eighth Circuit held that the potential to become pregnant is a medical condition that is sex-related because only women can become pregnant and that because the plaintiff established that her potential to become pregnant served as the catalyst for the discriminatory behavior, the jury verdict would not be disturbed. Id. at 1160.
15Schafer v. Board of Public Educ., 903 F.2d 243 (3d Cir. 1990) (reversing summary judgment to defendant, affirming district court's denial of summary judgment for plaintiff, and remanding entire case for trial).
16Statement of Joan C. Williams, Professor of Law, University of California, Hastings College of Law at the Equal Employment Opportunity Commission meeting April 17, 2007 of Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws, www.eeoc.gov/abouteeoc/meetings/4-17-07/williams.html. For additional information, see www.eeoc.gov/abouteeoc/meetings/4-17-07/index.html.
17Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam).
18International Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls Inc., 499 U.S. 187 (1991).
1942 U.S.C. §§ 12101-12213.
2042 U.S.C. § 1981.
2129 U.S.C. §§ 2601-2654.
221965 c. 230 added handicap as a protected category under the WFEA. 1981 c. 334 further defined the protection for handicapped individuals, terminology later changed to disability by 1997 Wisconsin Act 112.
231987 Wisconsin Act 287 created Wis. Stat. section 103.10.
24Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003).
25Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibility, May 23, 2007, www.eeoc.gov/policy/docs/caregiving.pdf.
26Questions and Answers about EEOC's Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, www.eeoc.gov/policy/docs/qanda_caregiving.html.
27Employee Retirement and Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461.
28Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219.
29Enforcement Guidance, supra note 25, at 2.
30Under Title VII, a plaintiff must present either direct evidence of discrimination or indirect evidence using the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff using the latter method has the burden of proving a prima facie claim for discrimination by a preponderance of the evidence. If a prima facie claim is proven, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the challenged action. If the defendant carries its burden, the plaintiff must have an opportunity to prove by a preponderance of the evidence that the legitimate reason offered by the defendant was not the true reason but instead was a pretext for discrimination.
31Lust, 383 F.3d at 583 (citations omitted).
32See Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006) ("A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.").