Joseph Beachboard, a shareholder with Ogletree Deakins, noted at the SHRM Annual Conference and Exposition held recently in Las Vegas, that family discrimination is not a new protected category. Furthermore, the family responsibilities discrimination concept does not prohibit an employer from treating parents/caregivers the same as childless workers.
Nevertheless, the EEOC does recognize employment discrimination based on stereotypes. The EEOC sees this new form of discrimination as an amalgamation of Title VII, FMLA, and ADA. EEOC’s new family focus has been influenced by the fact that there are more women in the workforce, more families with two parents working, and the acceptance of family responsibilities discrimination by the courts and legislatures.
The key factor, says Beachboard, is when a personnel action is taken because of a stereotype based on an employee’s status as a caregiver. The stereotype essentially says that an employee cannot be both a good caregiver and a good employee; that is, it assumes that “caring for another” must interfere with the employee’s ability to perform their job.
Some comments from FRD-related lawsuits:
- Warning a male employee not to take time off to take care of his ill father: he would be “cutting his own throat” if he took the leave.
- To woman who asked why she wasn’t promoted: “Because you have kids.”
- To a woman turned down for a job: “a woman who stayed home to raise her daughter over the past years was worthless to the department.”
Beachboard recommends that employers:
- Review policies, practices and hiring/assessment criteria
- Consider adopting policies that are family-friendly and that prohibit all forms of association discrimination or retaliation;
- Educate and train all managers and employees about this issue;
- Train your interviewers that bad questions can lead to bad consequences;
- Make employment related decisions based on facts, not stereotypes.
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