Family Responsibility Discrimination (FRD)

Scope

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex (including sexual orientation and gender identity), or national origin. Although FRD isn’t specifically listed, most employee suits fall under Title VII (typically as sex discrimination), the Pregnancy Discrimination Act, the Family and Medical Leave Act (FMLA), or the Americans with Disabilities Act.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

FRD and Title VII of the Civil Rights Act of 1964. Protected characteristics under Title VII are race, color, religion, sex, or national origin. Family Responsibility Discrimination falls under this Act when an employer uses gender stereotyping against an employee. For instance, an employer who believes mothers should stay home with young children may not offer promotions to women with young children. If the employer offers those same promotions to men who have young children at home, that’s unlawful disparate treatment.

Gender stereotyping can apply to men as well. For instance, if a man is denied the same flexibility in scheduling as a woman would be granted because the employer does not believe the man has the same need to be present for family events or appointments, that could also constitute FRD.

FRD and the Pregnancy Discrimination Act. An amendment under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act states that no employer may discriminate against a pregnant woman, whether married or unmarried, in terms of hiring, health insurance benefits, or fringe benefits. In addition, the employer must treat maternity leave the same way it treats any other short-term disability leave. The pregnant employee may also request time off under the FMLA.

An employer may get into trouble by trying to be “nice.” “Benevolent” discrimination occurs when a supervisor truly wants to help a pregnant employee by cutting back her workload or not offering her any overtime, even if the employee hasn’t asked for any special treatment.

FRD and the Americans with Disabilities Act of 1990. The Americans with Disabilities Act protects workers who have or had a physical or mental impairment from discrimination in the workplace. It also prohibits discrimination based on regarding an individual as having an impairment or based on an association with a disabled individual. This means, for example, that it’s illegal for an employer to refuse to hire someone because the person has a disabled child at home, or to treat a worker differently because of caregiver responsibilities needed for a disabled elderly family member.

FRD and the FMLA. No discussion of family responsibility would be complete without mentioning the FMLA. The FMLA entitles eligible employees to take up to 12 (or 26) weeks unpaid leave without losing their jobs or benefits. The FMLA applies to the following circumstances:

• The birth and care of a newborn child,
• The adoption or foster care of a child,
• The care of a family member who has a serious medical condition,
• Medical leave when the employee has a serious medical condition,
• To handle qualifying exigencies caused by a family member’s covered military duty, and
• To care for a family member with a serious injury or illness related to military duty.

Many men wish to take time off to care for new babies or newly adopted children. An employer who thinks men are not suited for caregiving might not grant time off. A male employee in this instance could have an FRD case against his employer in addition to a Family and Medical Leave Act (FMLA) claim.

The FMLA applies only to certain employees in specific situations.

FRD and State Laws. In addition to federal laws, many states have added protected classes. For example, the California Fair Employment Housing Act prohibits discrimination based on age, ancestry, color, creed, denial of family and medical care leave, disability, ethnicity, gender identity and expression, genetic information, marital status, medical condition, military and veteran status, national origin, pregnancy, race, religion, sex, or sexual orientation.

States may specifically prohibit discrimination based on caregiver status.

How to Avoid FRD. Avoiding stereotyping groups of people and making assumptions is the best way to stay on the right side of the law. General strategies to avoid FRD include:

• Treat each employee as an individual, not as part of a group.
• Develop, disseminate, and enforce a strong EEO policy.
• Prohibit retaliation against individuals who report discrimination or harassment based on caregiving responsibilities or who provide information related to such complaints.
• Focus on the qualifications of applicants and employees rather than personal characteristics.

Training. Managers and supervisors must be aware of the potential for FRD. Part of making them aware in this way includes ensuring they are familiar with common stereotypes or biases about caregivers that might result in unlawful conduct, including:

• Assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment;
• Assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees;
• Assuming that male workers do not, or should not, have significant caregiving responsibilities;
• Assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;
• Assuming that female workers who are caregivers are less capable than other workers; and
• Assuming that pregnant workers are less reliable than other workers.

Managers and supervisors must also be familiar with prohibited conduct, including:

• Asking applicants and employees about their child care responsibilities;
• Making stereotypical comments about pregnant workers or female caregivers;
• Treating female workers without caregiving responsibilities more favorably than female caregivers;
• Steering women with caregiving responsibilities to less prestigious, lower-paid, or less-demanding positions;
• Treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin-based stereotypes;
• Treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities; and
• Providing reasonable accommodations for temporary medical conditions but not for pregnancy.

Best practices. Finally, employers should do their best to be flexible. The EEOC urges employers to adopt best practices in flexible scheduling, allowing workers to opportunity to excel on the job and in their caregiving responsibilities.