Respecting the Work-Life Balance

Although the focus of increasing attention, there is no specific FRD statute and “caregiver” isn’t yet a specifically protected class. Instead, a conglomeration of statutes and rulings provides for some level of protection and a basis for pursuing claims. As for guidance to potential liability, even the most enthusiastic supporters of work-life balance are challenged to understand and comply with the interwoven mix of protections and requirements. And it’s going to get worse.

What Is FRD?

FRD is most commonly defined as discrimination against workers who have family caregiving responsibilities. While it has been at times referred to as “litigating the maternal wall,” the reach of FRD is much broader, including caregiver issues affecting pregnant women, mothers and fathers of young children, parents of disabled children, and workers who care for their aging parents or sick spouses or partners.

The types of policies and behaviors that are being litigated in the FRD arena include criticism or discipline for taking personal days for caregiving activities while noncaregivers are not; unequal application of rules regarding caretaking responsibilities; and benevolent and nonbenevolent stereotypes about who will be the family caretaker and how that will impact the caretaker’s work life.

The latest salvo? In May, a $100 million class action was filed against Merck & Co. in the U.S. District Court for New Jersey. Plaintiff Kelli Smith, a senior sales representative, alleges that Merck does not offer equal employment opportunities for women who have or may have children and women are punished for taking maternity leave. The suit alleges that Merck lacks meaningful standards and controls to prevent or address a system that places women in lower classifications, pays women less, fails to develop women, treats women who are pregnant or have children differently than males or nonpregnant females, and retaliates against women with childbearing responsibilities.

Among the relief sought is a determination of the proper standards for proving a pattern or practice of discrimination under a disparate impact theory and for proving that facially neutral practices and policies had a disparate impact on women with child care responsibilities. The suit alleges violations of Title VII and the Family and Medical Leave Act as well as several state statutes.

The Statutory Morass

As noted above, FRD issues are addressed through a network of federal statutes of which claims professionals should be familiar:

The Family and Medical Leave Act (FMLA). Provides certain employees the right to 12 weeks of unpaid, job-protected leave per year to care for, among other things, a parent or spouse with a “serious health condition”—an illness or injury requiring inpatient care or a short period of incapacity followed by continuing medical care.

The Americans with Disabilities Act (ADA). The association provision of the ADA provides individuals caring for people with disabilities protection against discrimination. It does not provide for reasonable accommodations for caregivers.

The Rehabilitation Act of 1973. Does not contain an association provision but has been interpreted as utilizing the same standard as the ADA. It affords accommodations for an employee’s own disability, not for caregivers.

The Employee Retirement Income Security Act of 1974. Under ERISA, employers may not fire or otherwise discriminate against an employee to avoid paying the health care costs of a dependent spouse or child.

Title VII of the Civil Rights Act of 1964. Prohibits discrimination because of race, color, religion, sex, and national origin. In the context of caregiving, it is most applicable to issues of discrimination based on gender stereotyping of female employees viewed as less competent and committed due to roles as primary caregivers. Current literature focuses on motherhood as the strongest form of gender discrimination, but this may change as our nation ages.

The Age Discrimination in Employment Act of 1967. Prohibits discrimination because of age against employees 40 years of age or older. Again, this may become a bigger player in FRD litigation as the population ages and older workers face the need to provide elder care to parents.

Fair Labor Standards Act. Requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.”

Additionally, individual states and local municipalities continue to examine and implement caregiving protections and rights. One of the challenges employers face in protecting themselves against FRD claims, and for claims professionals evaluating them, is determining which, or how many, of this network of statutes applies to what action or claim. Employers who genuinely believe they are complying with or even exceeding all requirements can still be caught.

For instance, for 10 years in a row, Working Mother magazine cited Novartis Pharmaceuticals as one of the 100 best companies for working mothers in the nation. Yet in 2010, Novartis settled a class action lawsuit claiming discrimination against women, particularly women who became pregnant, for $152 million (Velez v. Novartis Pharmaceuticals Corp.).

Increasing Focus on FRD

In 2007, the EEOC recognized the growth of FRD issues with its publication of “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The document was intended not to create a new protected category but to illustrate circumstances in which stereotyping or other forms of disparate treatment might violate Title VII or the association provision of the ADA, as well as responsibilities under the FMLA. The enforcement guidance outlined a number of potential liabilities which not only continue to be relevant but are gathering strength and breadth:

• Unlawful disparate treatment of female versus male caregivers
• Unlawful gender role stereotyping, including benevolent stereotyping and assumptions regarding work performance
• Effects of stereotyping on subjective assessments of work performance
• Pregnancy discrimination
• Discrimination against male caregivers
• Discrimination against women of color
• Unlawful caregiver stereotyping under the ADA
• Hostile work environment by virtue of offensive comments related to caregiving responsibilities
• Retaliation.

Despite these guidelines and the follow-up best practices guide issued in 2009, numerous witnesses testified before the EEOC in February 2012 that FRD issues were not being addressed effectively and, in fact, the changing labor force was going to bring even more pressure to bear on caregiving issues.

Indeed, evidence of a rising FRD tide continues to amass in recognition and broadening rights as well as in societal changes.

In January 2013, the Department of Labor issued a clarification of the FMLA provision regarding protected leave for the care of a son or daughter who is 18 years or older with a disability. The DOL clarified that the age of onset of the disability is irrelevant. A parent will be entitled to take leave to care for a son or daughter 18 years of age or older, if the son or daughter, regardless of the age of onset of the disability:

1    Has a disability as defined by the ADA

2    Is incapable of self-care due to that disability

3    Has a serious health condition

4    Is in need of care due to the serious health condition.

Moreover, the EEOC hearings included significant testimony from the AARP regarding the aging population and the effect on family caregiving of baby boomers’ aging parent population, followed by the care needs of the baby boomers themselves.

Similarly, the much anticipated coming of age of the Millennials brings with it their expectations that their work-life needs can, should, and will be met.

Additionally, the media are beginning to report the issues of fathers and male caregivers who are facing the “flexibility stigma,” that is, men who visibly participate in meeting the care needs of their families facing bias in the workplace.

Finally, evolving definitions of family, marriage, and partnership are taking center stage in our culture and in our jurisprudence, leading to an even broader field of relationships to which FRD would apply.

Strategic Enforcement Priorities

As noted above, the EEOC’s national priorities and enforcement strategies include at least three strategic priorities that point to a growing recognition and enforcement of FRD theories and claims.

1    Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

2    Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions, and administrative interpretations.

3    Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.

Clearly, the strategic enforcement priorities indicate a greater will to pursue and enforce FRD issues. The strategic priority of addressing “emerging and developing issues” can give claims professionals pause because it indicates potential liabilities for theories not yet fully developed. Some of these may be seen in the Merck lawsuit discussed above. Moreover, the plan itself emphasizes litigation as the primary means of developing and enforcing the priorities rather than preventive measures. In this regard, the relief sought in the Merck suit is appropriately targeted.

Evaluating FRD Claims

In evaluating claims, the claims professional will want to review the proactive steps an employer may have taken to prevent or eradicate the various forms of FRD. Best practices guidelines issued by the EEOC in 2009 are helpful but unfortunately are no guarantee of protection against theories that are still in the process of being developed.

The types of proactive steps that will help establish defenses to FRD claims are those outlined in “Employer Best Practices for Workers with Caregiving Responsibilities,” which should provide some degree of protection and affirmative defense to employers. These include:

• Developing, disseminating, and enforcing a strong EEO policy that defines caregiver, caregiving responsibilities, and a broadly inclusive definition of “family”
• Describing in the policy examples of common stereotypes and examples of prohibited conduct
• Reviewing employment policies and practices to determine if they discriminate against workers with caregiving responsibilities
• Encouraging employees to request flexible work arrangements and providing such options
• Providing personal or sick leave to allow employees to engage in caregiving, even if not required under FMLA
• Ensuring equal access to high-profile projects
• Providing support, resources, and/or referral services.

Additionally, claims professionals need to keep in mind all the various statutes and schemes that can be cited and be aware that the EEOC has indicated its intent to expand protections, not limit them. Do not simply assume you have an ADA claim or an FMLA claim, but consider, if you will, the gestalt. Moreover, expect further development in this area as the Millennials come of age, expecting their rights to work, finally, being cared for themselves.

When the road ahead is filled with so many as yet unseen twists and obstacles as the FRD road contains, even the best driver can be wracked with nerves. However, a proactive and attentive approach offers the best chance to avoid a major collision.