Title VII Family Responsibility Discrimination

By Marti Cardi, JD

VP Product Compliance
Matrix Absence Management

Title VII of the Civil Rights Act of 1964 provides employment protections against discrimination on such bases as race, religion, national origin, and sex (and pregnancy). But most employers don’t realize Title VII also protects workers who are caregivers against “family responsibility discrimination” (FRD). Caregiver discrimination isn’t limited to female employees caring for children. It also extends to men and other protected classes, and to an employee caretaker of another family member, such as a disabled spouse, sibling, or elderly parent.

It’s Complicated

Title VII does not prohibit discrimination against caregivers per se. Rather, employers can be liable when making adverse employment decisions on the basis of a protected classification plus caregiver responsibilities. The discriminatory act may begin by assuming a caregiver stereotype, such as:

• Female workers’ caretaking responsibilities will impede their success in a fast-paced environment.
• Male workers do not have significant caregiving responsibilities.
• Women of color need more time off because they have extended families and often are single parents.
• Female workers prefer to spend time with their families rather than at work.

Examples of illegal FRD include:

• Asking female applicants, but not males, about their child care arrangements.
• Steering women with caregiving responsibilities to less responsible, lower-paying positions.

• Treating women of color with caregiving responsibilities differently than other caregiving workers.
  • Denying male workers leave for caregiving responsibilities, but not female workers.

Benevolent Stereotyping

FRD liability can arise from making an employment decision based on assumptions about the employee’s welfare. Even if well-intentioned, this is illegal. For example:

• An employer assumes that his top-performing employee, a female with children, will not want a promotion requiring a transfer to another city.
• A female employee becomes a guardian for her nieces. Her employer removes her from major accounts to allow her more time to spend with her “new family,” although she did not request time off and was meeting all work expectations.

Base Action on Performance

Adverse employment actions are not discrimination if they are based on actual performance. Breaking company rules due to a family need or interest does not insulate the employee from discipline under the banner of FRD. For example, an employee who exceeds the employer’s allowed unexcused absences can be disciplined even if the absences were due to his caregiver responsibilities — but remember FMLA protections! Just ensure that the standards and policies are applied equally to other employees without caregiver responsibilities.

FRD discrimination also includes illegal harassment or creating a hostile work environment based on a protected classification plus caregiver responsibilities. A supervisor could create such liability by constant criticisms of “working mothers,” frequent comments about the costs to the company of pregnant workers, and complaining that other workers had to take up the slack for an employee during her maternity leave.

FRD Can Be a Costly Lesson

A 10-year Kohl’s employee was told she had management potential. After she had three children, she was skipped over for five store manager positions in a two-month period in favor of less-qualified men or women with no children. The case was nailed with quotes from her supervisors: “You’re not going to get pregnant again, are you?” “Did you get your tubes tied?” “Are you breast feeding?” “I thought you couldn’t have any more kids.” The resulting judgment was over $3 million in lost wages, punitive damages, and attorneys’ fees (Lehman v. Kohl’s [Ohio 2007]).

References

Visit the Equal Employment Opportunity Commission’s Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities at https://www.eeoc.gov/policy/docs/caregiving.html.