Many employers are not recognizing family responsibilities discrimination when it happens in their workplaces, according to a new study issued today by the Center for WorkLife Law. Employers that are not familiar with the evolving legal protections for employees who care for family members are unable to prevent or remedy supervisors’ culpable conduct. When they get sued, the employers often fail to settle. As a result, employees are winning 67% of the FRD cases that go to trial, and many are receiving large verdicts.
This finding and much more are set out in Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016. The report, authored by Workforce 21C’s Cynthia Thomas Calvert, is based on an analysis of 4,400 FRD cases from across the country involving employers of all sizes from all industries. Here are a few of the key points for employers:
- FRD, also called caregiver discrimination, is discrimination because an employee cares for family members. It includes discrimination against pregnant employees, mothers and fathers of young children, employees who care for family members with disabilities or serious illnesses, and employees who care for aging parents. Almost every employee will be a caregiver at some point in his or her life.
- More states and cities now have laws that prohibit FRD. In jurisdictions that do not have such laws, employees sue for FRD using Title VII, the Family and Medical Leave Act, the Americans with Disabilities Act, state anti-discrimination and leave laws, pregnancy accommodation laws, and other laws.
- The number of FRD cases rose 269% in the last 10 years, as compared to the prior 10 years.
- Men are filing more FRD lawsuits. They sue for denial of paternity leave or unequal child bonding leave, and for retaliation because they took family leave. They also sue for discrimination when their caregiver status becomes know, such as denial of a promotion, punitive workloads, and unwarranted negative evaluations.
- Discrimination against mothers and pregnant women remains strong. Some employers are still rescinding job offers to pregnant women, denying promotions to mothers, and firing new mothers when they are on maternity leave – to give just a few examples. This type of discrimination has generated some of the highest FRD verdicts, including one that was $185 million for a single plaintiff.
- Eldercare is the hot new area about which employers need to be concerned. The number of cases filed by employees who care for their parents rose 650% in the last decade, and these types of cases are expected to increase at an even higher rate in the near future as the population ages – half of employees report that they plan to provide eldercare in the coming five years. Men bring many of these cases (39%).
The report also contains information about verdicts and settlements, the numbers of cases in each state, cases by industry and occupation, and trends focused on particular types of caregivers. It concludes with recommendations for how employers can prevent FRD, including supervisor training, an HR oversight and investigation program, and a work coverage plan.