State and local public employers should be aware of a new concept developing in the field of gender discrimination: family responsibilities discrimination (FRD). A report by the Center for WorkLife Law at the University of California’s Hastings College of Law, has examined the growing national trend in lawsuits filed by employees who contend that they have been discriminated against because of their care-giving responsibilities. Claims within the FRD cause of action include the gamut of employment torts and constitutional protections: sex stereotyping, pregnancy bias, hostile work environment, retaliation, disparate treatment, disparate impact, FMLA interference, ERISA violations, Equal Pay Act violations, breach of contract, tortuous interference with contract and wrongful discharge, to name a few.
The first U. S. Supreme Court case that could be considered an FRD case was Phillips v. Martin Marietta Corp. This was a watershed case for working women because employers could no longer bar females with school-aged children from applying for jobs that a male employee with school-aged children could occupy. The ruling attempted to ensure that women who were also mothers would have the same employment opportunities as women with no children or males.
FRD claims and FRI litigation are on the rise. While only eight FRD cases filed in the decade of the 1970s – the decade the Phillips v. Martin Marietta Corp. was decided, according to the Center for WorkLife Law, in the ten years ending in December of 2005, FRD cases filed grew almost 400% from the immediately prior 10 year period (1986-1995).
A huge breakthrough for sex stereotyping claims occurred in 2005 in the 2nd Circuit Court of Appeals: the Court held that making stereotypical assumptions about a mother’s commitment to her job constitutes sex discrimination, even if the mother did not have evidence that similarly situated fathers were treated differently. Stereotyping is the “blinking neon sign” in most FRD cases. The term covers employment decisions based on unexamined biases of employers and HR personnel about how employees should handle their family care-giving responsibilities.
Consider requiring FRD training for your supervisory staff. It can be made available to you through the Stennis Institute of Government by contacting Lydia Quarles.
The Court of Appeals of the State of Mississippi delivered an interesting opinion last week in the case of Kathi L. Acy v. Mississippi Employment Security Commission, No. 2005-CC-02019-COA (7/17/2007). Acy worked as a greeter at Wal-Mart. She and a customer had an altercation when a DVD purchased by the customer set off the alarm as the customer was leaving the premises. It is undisputed that Acy cursed under her breath in the presence of the customer and the customer heard her (as did customer’s two daughters and their eight-year-old friend)and complained to management. Acy was terminated because she violated Wal-Mart’s policy prohibiting rude or abusive conduct toward customers.
The interesting twist is that an employee who admittedly violates company policy, rules or regulations may not have committed, by that behavior, disqualifying misconduct and thus may remain entitled to unemployment benefits.
Generally, employers believe that if an employee commits an act that results in termination for cause, the employee will not be entitled to unemployment benefits. Citing cases from other jurisdictions, the Court of Appeals found that while an employee’s conduct may harm the employer’s interests and justify the employee’s discharge, “it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equally culpable.” Jacobs. V. California Unemployment Appeals Bd., 25 Cal. App.3d 1035, 1037, 102 Cal. Rptr. 364 (1972).
The moral to the story for cities, counties, state agencies and other governmental employers is that termination for cause does not necessarily disqualify the employee from drawing unemployment benefits. Many employers who terminate an employee for cause do not even appear at an unemployment hearing, believing that this employee cannot negatively impact the unemployment ratio (thus raising the required investment from this employer into the unemployment benefit pool).
Take an active role in unemployment benefit hearings when an employee is terminated for cause. It takes only a few facts skillfully articulated to rise to the level of wilful and wanton conduct.
Last week the United States Supreme Court issued a decision in Parents Involved in Community Schools v. Seattle School District #1. This decision is worthy of consideration. In looking at policies established in schools in Seattle and Louisville, Jefferson County, Kentucky, the Court rejected the formulas which used race as a classification in assigning students to particular schools.
The opinion is interesting in and of itself, but the fascinating thing about the opinion for Mississippians is that it implies that when desegregation decrees under which school districts have operated have been dissolved by the Court, action taken after the dissolution of the decree appears not to fall into the category of “remedying effects of past intentional discrimination”, thus these actions are no longer compelling governmental interests which demand strict scrutiny by courts.
Virtually all Mississippi public schools began operating under desegregation decrees in the late ’60s and early ’70s. While many school districts continue to operate under the desegregation decree (the Starkville School District, for instance), others have affirmatively sought dissolution of the decrees. When a desegregation decree is dissolved by the appropriate court, the court is indicating that the district has remedied effects of past intentional discrimination. Thus, the responsibility of strict scrutiny does not devolve on a court considering subsequent actions of the district.
Why have we been busing children for 50 years? And what happens to Brown v. Board of Education? The Equal Protection clause prevents states from according deferential treatment of American children on the basis of their color or race. This clause, as applied by the Warren Court in 1954, created the mandate for desegregation in public schools in America. This clause, as applied in Parents Involved in Community Schools v. Seattle School District #1, has mandated that race cannot be relied on as an arbiter of diversity in America’s public schools unless there is no method available other than individual racial classification to elicit and achieve the school district’s articulated policy.