Family Responsibilites Discrimination
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.