Employment litigation based on family circumstances continues to rise

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Family responsibilities discrimination continues its growth as the biggest challenge employers never see coming, according to a comprehensive new study from WorkLife Law at UC Hastings.

When employees sue their employers for FRD, the cases include complaints of discrimination based on pregnancy, motherhood, fatherhood and care for both family members who are sick or have disabilities and aging or ill parents.

“FRD cases have risen 269% over the last decade.”

“FRD cases have risen 269% over the last decade – a period when federal employment discrimination cases decreased,” says study author Cynthia Thomas Calvert. Her team has amassed a database of 4,400 cases at the local, state and federal level.

Governing statutes

No federal statute expressly prohibits employment discrimination based on family responsibilities although several state and local laws do. As a result, most caregiver cases are brought using a patchwork of claims under federal and state anti-discrimination and leave laws.

The most common federal laws used in FRD cases are:

· Title VII of the Civil Rights Act of 1964 (sex discrimination, including pregnancy discrimination)
· Family and Medical Leave Act of 1993
· Americans with Disabilities Act of 1990 (association discrimination; pregnancy-related disabilities); Rehabilitation Act of 1973 (same, for
federal employees)
· Employee Retirement Income Security Act of 1974 (interference with covered benefits)

Employees in states or cities with laws explicitly prohibiting employment discrimination against caregivers can rely directly on claims that they were unlawfully discriminated against because of their status as a caregiver.

Several states and at least 90 local jurisdictions have passed laws explicitly prohibiting FRD, including New York, Minnesota, Alaska, the District of Columbia, New York City, Chicago, San Francisco, Philadelphia, and Boston. Additional states such as Massachusetts and Pennsylvania are considering bills to prohibit FRD at work.

“One of the most difficult things is to make sure HR, employers and supervisors understand all the different statutes they might be liable under,” Calvert says.

Emerging trends

Employees win 67% of the FRD cases that go to trial and 52% of all FRD cases that are filed. Over the last decade damage awards totaled almost half a billion dollars in verdicts and settlements. “This amount is likely a vast understatement of the real amount because it does not include confidential settlement agreements,” Calvert says.

“With an ever increasing array of family leaves and accommodation laws both at the federal level and across the country, we’re certainly seeing quite an uptick in employees who are willing to advance those rights, whether through a grievance or even a lawsuit,” says FMLA attorney Jeff Nowak, a partner at Franczek Radelet in Chicago.

Cases involving pregnancy are the most common type of FRD claim (67%) and
pregnancy accommodation cases increased by 315% over the study period. These cases involve women who want to continue working but need workplace accommodations.

Litigation where an employer denied accommodation to or discriminated against an employee because she was breastfeeding or needed to express milk during the workday increased 800%, though the number of cases remains small.

In addition, the study reports that eldercare is the new frontier for caregivers. “We’re living in a time where baby boomers, and soon Gen Xers, are working later in life. This ‘sandwich generation’ is caring for both parents and children,” Nowak says.

“There has been a 336% increase in the number of lawsuits involving paternity leave.”

Another notable trend identified by the study is the emergence of men as caregivers which has led to uptick in FRD claims filed by men, who initiate 25% of the calls to WorkLife Law’s FRD hotline. Male employees have brought 55% of spousal care cases, 39% of eldercare cases, 38% of FMLA cases and 28% of childcare cases. There has also been a 336% increase in the number of lawsuits involving paternity leave.

Nowak sees this as a natural evolution as more women than ever are family breadwinners. “The younger generation is more and more interested in work-life balance and we are seeing increases in the number of people who want to take paternity leave for an extended period,” he notes.

Impact on employers

FRD is found in every industry and at every level within companies. Claims for FRD have been filed in all U.S. states with employees more likely to prevail in the northeast and west region. Furthermore, Calvert’s review of the size of individual verdicts or settlements illustrates that the potential direct financial impact of FRD litigation on employers is far from trivial.

In one pregnancy discrimination jury trial, a plaintiff was awarded more than $185 million. In the largest reported FRD class action case, $250 million was awarded, and the parties settled for $175 million. Another 29 individual verdicts and settlements have been over $1,000,000, typically including large punitive damages awards.

“There are caps on Title VII awards for compensatory damages of $300,000 and punitive damages of $300,000 so some of these huge jury awards may have to be reduced,” Nowak explains. “However, once you add in both employer and employee court costs, potential employer liability can quickly add up.”

Other collateral damage of FRD litigation on the workplace includes distracted employees, a drain on employee productivity and reputational damage that could negatively influence both clients and prospective new hires.

“Existing employees may even be worried about their own jobs and decide to look elsewhere if they believe co-workers have been mistreated,” says Calvert.

Employer best practices

So what can and should employers be doing? The WorkLife Law report outlines a series of best practices that can help head off potential FRD litigation.

1. Train supervisors to recognize what constitutes FRD, why it happens and to minimize the influence of unconscious bias on personnel decisions.
2. Adopt anti-discrimination policies that include family responsibilities or add family responsibilities as a protected category to an existing anti-discrimination policy.
3. Active oversight by HR professionals involving caregiving employees can nip problems in the bud.
4. Ensure there is a process for filing complaints and responding to employee concerns about FRD discrimination. Investigators should know why and how FRD arises, be familiar with the triggers and indicators of bias and frame their inquiries accordingly.
5. Institute a “work coverage” project where plans are made for how each and every employee’s work will be covered in the case of a lengthy absence whether as a result of his/her own illness or because of family caregiving responsibilities.

“It’s critical that employers take all requests for accommodation seriously, recognizing not only the impact on the business, but the effect on employee morale,” says Nowak.

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