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Family Responsibilities Discrimination Increasing

What is Family Law Discrimination (FRD)?

Family law discrimination may be thought of as workplace discrimination based upon pregnancy, having children, and workplace absences to care for family members.

The discrimination is often subtle – such as being excluded from teams that may work on key client projects – but the effect can be dramatic.  A woman who becomes pregnant may be excluded from a key client team, and, because she has not had the opportunity to perform well in this important position, she is not considered for a promotion later.

An employee may be “punished” for exercising rights that are available under law, such as taking maternity or paternity leave or family medical leave to care for a sick family member.  The employee may be tagged as not being a “team player,” and thus later excluded from key advancement opportunities or positions.

These actions – while subtle – are illegal.  They are also demoralizing, as they inhibit employees from exercising their rights.  This is wrong.

The Study

A study from the University of California – Hastings found that family responsibilities discrimination (FRD) has increased 269% over the past decade.[1]  Interestingly, the study found that the number of discrimination cases filed in federal court actually decreased during this same time.

Not only did FRD cases dramatically increase, but study author Cynthia Thomas Calvert  also found that:

  • Between 1998 and 2012, FRD case filings increased 590% while the number of employment discrimination cases filed in federal courts decreased 13%.
  • Employees prevailed at a much higher rate in FRD cases that went to trial than other employment cases.
  • In the decade ending in 2015, employees were awarded over $477 million, more than double the amount from the previous decade.
  • Pregnancy accommodation cases (cases involving women who need accommodation at work because of their pregnancy) were up 315%.

This study was based upon an analysis by the Center for WorkLife Law of 4,400 FRD cases.

Why Do Employers Engage in Illegal FRD Actions?

Likely, there are a number of reasons for employers to engage in illegal FRD actions:

  • They are upset because of the leave being taken. If a key employee will miss 6 weeks or more (possibly several months), the employer may be in a difficult position with respect to key clients or an important management role.  Put simply, employers may not have others who can easily take over these responsibilities, and finding temp workers is usually not possible.
  • They want to discourage other workers from exercising their rights. If an employee believes that they are likely to see their long-term career negatively impacted by taking a few months off to help an ailing parent, they may think twice before doing so.
  • They think that they can get away with it. How can a worker prove that she was excluded from the important Jones account solely by the fact that she would soon be taking maternity leave?  There may not be any evidence (like emails or conversations) concerning such exclusion.  The employer may believe that they can easily take such action without anyone being able to hold them to account.  

They are wrong.  Their actions can – and will be – challenged.

If you believe that you are being discriminated against in violation of family rights discrimination laws, please contact our firm. 

[1] See Caregivers in the Workplace: Family Responsibility Discrimination Litigation Update 2016, by Cynthia Thomas Calvert, http://www.worklifelaw.org/pubs/FRDupdate2016.pdf , page 6.

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