In a free i-Sight webinar with Cynthia Calvert, the issue of family responsibilities discrimination was discussed. Calvert shared tips for preventing FRD discrimination and how to investigate allegations of FRD. To watch the webinar recording, visit: http://i-sight.com/webinar-investigating-family-responsibilities-discrimination-claims/

1. Copyright 2014 Cynthia Thomas Calvert
Investigating Family Responsibilities
Discrimination Claims
Cynthia Thomas Calvert, President, Workforce 21C

2. Cynthia Thomas Calvert is a nationally-recognized lawyer,
speaker, writer, consultant and the president of Workforce
21C. She helps employers manage today’s evolving workforce,
including preventing family responsibilities discrimination and
systemic gender discrimination, implementing non-stigmatized
flexible work programs, and creating inclusive workplace
cultures. Cynthia is also Senior Advisor for Family
Responsibilities Discrimination at the Center for
WorkLife Law, based at UC Hastings College of the Law.

3. • Grace
• Michael
• Yvonne

4. • All have family responsibilities
• All had employers who made decisions at least in
part based on their family responsibilities

5. Employment discrimination against mothers and
fathers of young children, pregnant women, and
caregivers for family members such as sick
spouses/partners, aging parents, and children
with disabilities.

6. – Failure to hire
– Hostile work environment
– Increased work requirements
– Denial of or interference with leave
– Failure to promote
– Retaliation
– Wrongful termination

7. • Over 3600 FRD cases nationally
• Plaintiffs come from all industries, all sizes
of employers, all levels of workers
• 88% of cases brought by women
• Plaintiffs win at trial or settle favorably
about 50% of the cases
• Highest individual verdict: $11.65 million
• Highest class action verdict: $250 million
-- Source: The Center for WorkLife Law

8. • District of Columbia expressly prohibits FRD in
employment
• Alaska prohibits discrimination based on
parenthood
• Connecticut prohibits information about family
responsibilities unless related to BFOQ

9. • More than 80 counties and cities have FRD
ordinances
– “familial status,” “parenthood,” “family
responsibilities”
– Some with private right of action and
uncapped damages

10. • Title VII and PDA
– State anti-discrimination statutes
• Family and Medical Leave Act
– State leave laws
• Americans with Disabilities Act
– State pregnancy accommodation laws
• Common law (wrongful discharge, contract, fraud,
infliction of emotional distress, promissory estoppel)

11. • Litigation costs
• Verdicts, settlements, plaintiff’s attorney’s
fees, defense attorney’s fees
• Business disruption
• Damage to reputation

12. • Non-litigation costs
• Distraction, stress, damage to morale, lost
productivity
• Loss of experienced, trained employees with
client relationships
• Damage to recruiting

13. Workforce/Workplace mismatch
– Ideal worker
– Few workers have another adult at
home taking care of family matters
• 50% of the workforce is female
• 83% of workers are in families where
all adults are in the paid workforce

14. Almost everyone will be a caregiver at some
point in his or her life.

15. • Bias (assumptions) about caregivers, mothers,
fathers, pregnant women, flexible schedule
workers, workers who take leave affects decision
makers
• Underlying assumptions can affect everyday
interactions in the workplace by shaping:
- expectations - perceptions
- responses - behavior

16. • We notice and remember things that are
consistent with our biases
– Example: a supervisor is more likely to notice
and remember when a mother takes a day off
to be at home with her sick child than when a
single, child-free woman takes a day off to
stay home and wait for the plumber
• “Choice and discrimination are not mutually
exclusive.” --Joan Williams

17. • Firing mothers for taking leave to
care for sick children
• Giving promotions to women
without children or to fathers
rather than to more qualified
mothers
• Making mothers’ lives miserable at
work, hoping they will quit
• What is going on here?

18. • Bias against mothers
–Not as competent
–Not as committed

19. • Firing workers when they announce
their pregnancy
• Demoting pregnant workers
to “an easier job”
• Putting pregnant workers
on medical leave
• Not promoting pregnant women
• Making pregnant women’s jobs
harder, hoping they will quit

20. • Not as competent
• Not as committed
• Not dependable
• Will just quit
• Benevolent stereotyping

21. • Demoting fathers who take time off to
care for children
• Discouraging paternity leave
• Punishing men who have childcare
responsibilities
• Passing fathers over for promotion
• Social isolation and harassment
• Denial of flexibility

22. • A little bit involved makes him a
great guy
• A lot involved makes him
– Not committed
– Not ambitious
– Not a team player
– Not dependable

23. • Terminating workers who take
leave to care for elders
• Harassment once caregiving
obligations become known
• Schedules changes, removal
of flexibility trying to force worker
to quit

24. • Not reliable
• Not available
• Absent too much
• Distracted, less productive
• Will take long leaves

25. • Women do have babies and do most of the
caregiving
• But can’t assume or take pre-emptive action
– Unfair and inaccurate linkage of status/
demographics and negative assumptions
• Ex: Just because she is a new mother doesn’t
mean she can’t maintain client relationships
• Ex: Just because he asked for flexible work
does not mean he will be less reliable

26. • Caregivers for whom “the stereotypes are true”
may be affected unfairly
– Ex: A mother may be absent to take care of sick
children and will be terminated, whereas a woman
without children who is absent the same amount of
time for her own illness or for a personal reason
(oversee house renovations, train for marathon) will
not be.

28. • Stand-alone policy
• Add to existing policy

29. • Attendance
• Leave
• Promotion
• Flexible Work Arrangements
• Compensation and benefits
• Performance evaluations

30. • Training for HR
• Training for Supervisors
• Topics:
– What is FRD?
– Legal bases for liability
– How it arises (demographics, bias)
– Common assumptions about caregivers
– Business case for retaining caregivers
– Company policies
– Techniques for reducing influence of bias in decisions

31. • Look at demographics
– Women with young children in upper
management
– Length of maternity and paternity leaves
– Promotion and compensation after family
leave or flexible work schedule
– Terminations and lay offs

32. • Flexible work schedules do not prevent FRD
– Do not address caregiver biases
– Can trigger flexibility bias

34. • Look for triggers
– A caregiver, or about to become one?
– Ask for or take leave?
– Pregnant?
– High medical bills?
– Asked to work flexibly?

35. • New Supervisor
• Second Child

36. • Suddenly negative evaluations
• Recent goal increases
• Uneven application of rules or discipline
• Demotion or transfer

37. • Employee’s performance
– Look for objective measures not influenced by bias
(quotas, evaluations by third parties unaware of caregiver
status)
– Look at performance over time
• How others have been treated
– Look for consistent application of rules, discipline
– Look for how other caregivers have been treated by same
supervisors

38. • Supervisors involved
– Same supervisor who treated employee fairly after employee
became caregiver reduces likelihood of liability
• Comments made
– Make record of specific allegation
– Look for witnesses
• Timeline of performance and caregiver status
– Lengthy time as caregiver reduces likelihood of liability

39. • Demographics of department
– Proven pattern of advancing mothers, caregivers who
have taken leave, etc. reduces likelihood of liability
• Employee’s notice of employer policies
– Showing that employee knew of attendance policy,
FMLA leave procedures, call-in requirements, etc.
can reduce liability

40. Complaint: She did not get a promotion she
expected, and her boss told her it was because
she didn’t put in enough time at the office
because she is a mother.

41. • Failing to investigate promptly and thoroughly
• Failing to get and document all the details
– Ask when, where things happened, who saw it
– Ask who else was treated differently
– Ask how often harassing conduct occurred, when
– Ask how the complainant reacted or was affected
– Does he/she know of other witnesses or documents?
– How does the witness know?

42. • Instructing employee or witnesses not to talk
with anyone about the complaint
• Forgetting that investigation file may be evidence
in court
• Failing to check your own biases

43. • Purpose: bring issue to an end, create
sound basis for deciding course of action
• Summarize the evidence
– Witness statements, credibility
– Documents, source
• Know the elements of the legal claims
at issue
– For each element, assess the evidence

44. • Weigh the options
– No action, counseling, discipline, removal
• Communicate resolution to complainant

45. • Do a fair, documented investigation
• Avoid retaliation
• Educate the supervisor about how to better manage
• Meet with your company’s lawyer
• Offer reinstatement
• Do not oppose unemployment
• Accurately assess the value of the claim
• Settle claims with employees

47. If you have any questions, please feel free
to email them to:
Cynthia Thomas Calvert, President, Workforce 21C
CynthiaCalvert@CynthiaCalvert.com
www.workforce21c.com
Joe Gerard, Vice President Marketing and Sales, i-Sight
j.gerard@i-sight.com