Family Responsibilities Discrimination

Family responsibilities discrimination, also called caregiver discrimination, is discrimination in the workplace based on an employee’s responsibility, real or perceived, to care for family members. Employers may discriminate based on family responsibilities when they deny employment or promotions, harass, pay less, or otherwise take negative employment action against an employee because of the employee’s family responsibilities.

Family responsibilities can include caring for a spouse, child, or parent, being pregnant, or even the chance of becoming pregnant, caring for a disabled child, or sibling or caring for an aging parent. Family responsibilities discrimination can affect almost any employee. Family responsibilities discrimination may also coexist with marital status or family status discrimination when unmarried and married couples are treated differently.

What is family responsibilities discrimination?
Family responsibilities discrimination (“FRD”) is employment discrimination that is based on workers’ responsibilities to care for their family members. This type of discrimination may happen to pregnant employees, employees caring for aging parents, parents with young children or workers who have a family member with a disability. If these employees face unfair discrimination in the workplace based on responsibilities such as this, they may be experiencing FRD.

What are some types of discrimination that qualify as family responsibilities discrimination?
Somes examples of FRD include:

  • Firing pregnant employees because they are pregnant or will take maternity leave
  • Failure to promote pregnant women or women with young children/ giving promotions to women without children or fathers instead of more qualified women with children;
  • Giving parents work schedules that they cannot meet for childcare reasons while giving nonparents flexible schedules;
  • Fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities;
  • Penalizing workers who have legally taken time off to care for aging parents; or
  • Promoting single men over engaged or married women for fear that they will become pregnant.

Why is FRD important?
The EEOC recently published reports that highlight the ever-growing issue of employment discrimination facing family caregivers Seventy percent of U.S. households with children have all adults participating in the labor force.

  • Women make up 46% of the U.S. labor force, and most (81%) of women in the United States have children.
  • 25% of families take care of aging relatives.
  • 10% of employees are taking care of both children and aging parents.

With these statistics, it is clear that a large number of employees are either currently or potentially affected by employers who discriminate due to an employee’s family responsibilities.

Who is affected by FRD?
If you have a job and family caregiving responsibilities, you may be affected by FRD. Women with children are most likely to encounter FRD: they are 79% less likely to be recommended for hire, 100% less likely to be promoted, and are generally offered at least $10,000 less in salary for the same position as a similarly situated male.

Increasingly, men face family responsibilities discrimination in the workplace when they seek to actively care for their children or other family members. FDR against men can take a variety of forms, for example some employers have denied male employee’s requests for leave for childcare purposes even while granting female employee’s requests.

How are businesses affected by FRD?
Businesses are often unaware that the employment actions they are taking are illegal. Employers (regardless of outcome) are subject to high litigation costs and also face the risk of high turnover rates for not recognizing the needs of employees with certain caregiving responsibilities.

It is essential for businesses to have a prevention program in place. Employers should review their hiring, attendance, promotion, incentive pay, benefits, and leave policies to ensure they are not negatively impacting employees. Businesses should train supervisors and HR personnel about what constitutes FRD and how to handle complaints. Employers should also become aware of common stereotypes, and treat all FRD complaints equally and seriously.

What are the current laws governing FRD?
There is no federal law that expressly prohibits FRD. Even though there is no statute expressly prohibiting FRD, employees may be protected by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, and ERISA. Some states have adopted laws, and some categories of employees, like federal employees, may have protection. For example:

  • Alaska Statute §18.80.220 prohibits discriminating against an employee based on “parenthood”
  • D.C. Human Rights Act §§2-1401.01, 2-1401.02(12), 2-1402.11, 2-1411.02 prohibits employment discrimination based on “family responsibilities”
  • Some cities and counties have provisions similar to D.C., and including Cook County, Illinois; Atlanta, Georgia; Milwaukee, Wisconsin; and Tampa, Florida.
  • Federal Executive Order 13152 prohibits employment discrimination against federal employees because of their “status as a parent.”
  • Conn. General Statute § 46a-60(a)(9) prohibits employers in Connecticut from requesting or requiring information from applicants or employees relating to their familial obligations.
  • Over 55 localities prohibit employment discrimination based on FRD under different statutes. Contact us to find out how you might be protected.
  • The Civil Service Reform Act of 1978 prohibits marital and parental status discrimination. (See: Federal Prohibited Personnel Practices for more information)

My employer asked me in my job interview whether or not I was married, and what my spouse did. Is this legal?
While there is not a federal law that specifically prohibits such questions, most employers make it a practice not to ask such information to avoid being accused of unlawful practices such as sex discrimination, sexual orientation discrimination, or invading an employee’s privacy. A good practice for employers to follow is to not ask about any characteristic of the applicant that the law prohibits the employer from considering in making hiring decisions.

However, a company that has an anti-nepotism policy (which prohibits spouses or family members from working in the same company or department) may inquire whether you have a spouse or family member already working for the company.

If you are asked these questions, you may decline to answer. However, you may run the risk of offending the interviewer and losing an opportunity to compete for the job. You may wish to answer the question during the interview, and if you are hired for the job, later discuss the matter with the interviewer or the company’s personnel office.

Because stereotypes that female caregivers should not, will not, or cannot be committed to their jobs are sex-based, employment decisions based on such stereotypes violate Title VII of the Civil Rights Act of 1964. In the following example, Patricia would have a valid claim under Title VII:

  • Patricia, a recent business school graduate, was interviewed for a position as a marketing assistant for a public relations firm. At the interview, Bob, the manager of the department with the vacancy being filled, noticed Patricia’s wedding ring and asked, “How many kids do you have?” Patricia told Bob that she had no children yet but that she planned to once she and her husband had gotten their careers underway. Bob explained that the duties of a marketing assistant are very demanding, and rather than discuss Patricia’s qualifications, he asked how she would balance work and childcare responsibilities when the need arose. Patricia explained that she would share childcare responsibilities with her husband, but Bob responded that men are not reliable caregivers. Bob later told his secretary that he was concerned about hiring a young married woman – he thought she might have kids, and he didn’t believe that being a mother was compatible with a fast-paced business environment. A week after the interview, Patricia was notified that she was not hired.Believing that she was well qualified and that the interviewer’s questions reflected gender bias, Patricia filed a sex discrimination charge with the EEOC. The investigator discovered that the employer reposted the position after rejecting Patricia. The employer said that it reposted the position because it was not satisfied with the experience level of the applicants in the first round. However, the investigation showed that Patricia easily met the requirements for the position and had as much experience as some other individuals recently hired as marketing assistants. Under the circumstances, the investigator determines that the respondent rejected Patricia from the first round of hiring because of sex-based stereotypes in violation of Title VII.

My company pays health insurance for all spouses, children, and domestic partners of my coworkers. I am single and don’t have children or a domestic partner. Am I being discriminated against, since they receive more benefits than I do?
Unmarried or childless workers may lose hundreds or even thousands of dollars per year in employee benefits compensation. Many employers subsidize all or a large portion of health, dental, vision, and other benefits for spouses and families of married employees without giving similar compensation to unmarried and/or childless workers in some other form. However, in most states, this is not illegal discrimination, as marital and/or familial status discrimination is not against the law.

Even in states where marital status discrimination is illegal, several state laws have exceptions for benefits which permit employers to legally discriminate in the benefits provided.

One way to eliminate marital or familial status discrimination from employee benefits programs is to implement “cafeteria”-style benefits programs. In these programs, all workers, regardless of marital or familial status, receive the same amount of credits to be used for benefits, which allows them to pick and choose benefits best meet their personal or family needs.

Giving domestic partner benefits to same-sex and heterosexual unmarried couples also helps eliminate some discrimination against unmarried workers who have a partner. Even though many states have legalized same-sex marriage, and the Supreme Court has struck down the Defense of Marriage Act (DOMA) which prevented same-sex marriages from being legally recognized by the federal government, several states still ban same-sex marriage, and in other states, courts have not yet resolved the legality of same-sex marriage bans. Some companies have adopted an “extended family” benefits program to fairly compensate unmarried employees who live with a dependent adult blood relative.

While such practices may not be required by law, employers interested in hiring and retaining valuable employees may wish to voluntarily adopt such programs. If you feel you have been treated unfairly due to your family responsibilities status, you may wish to explore with your employer’s personnel or human resources department whether additional options are either currently available or under consideration, and discuss with other workers whether they also object to the difference in benefits.

My coworker leaves early every Tuesday to pick up her kids, while I have to cover for her. I am not allowed to leave early on any day for appointments or other non-work commitments unless I want to use leave time or have my pay docked. Is this illegal?
While this appears to be a form of FRD, it is probably not illegal. In most states, marital status or familial discrimination is not against the law. Even if your state does recognize these forms of discrimination as illegal, being forced to temporarily cover for another employee is not likely to be considered serious enough to succeed in a discrimination complaint. Many companies have adopted “flex time” or other “family-friendly” policies which make it easier for workers with children to balance work and family commitments.

If you still believe you have been treated unfairly, you may wish to discuss this situation with coworkers, your supervisor, or your company’s personnel department to determine whether the company can adopt leave policies or practices that treat employees with and without children the same, or whether the department’s work can be reallocated so that no one person is required to assume the burden of a worker’s absence for family reasons.

I am a single mother with a child and am not married to my child’s father. My supervisor, who is very religious, keeps asking me when I’m going to get married and makes clear to me that she disapproves of me not being married. Can she discriminate against me?
Discrimination against a single mother with a child because she is unmarried would appear to be a form of marital status and/or parental status discrimination. However, some courts have held that religious organizations or organizations working with youth may discriminate against employees who do not subscribe to the organization’s principles, as long as those principles are applied to all employees. If such organizations have specific principles condemning premarital sex, they have been allowed to terminate unmarried pregnant employees on the basis that they were terminated for engaging in premarital sex. However, to avoid a valid claim of sex discrimination, these employers would need to demonstrate that they do not treat men who are known to engage in premarital sex differently than women who engage in premarital sex. The latest Supreme Court decision on this issue articulated that the Religious Freedom Restoration Act protects religious owners of a closely-held for-profit corporation in making employment decisions based on their sincere religious beliefs.

If you work for a non-religious employer, however, your employer may find it difficult to maintain a legitimate business justification for policies or practices that discriminate against unmarried women who are either pregnant or already have children. The personal religious beliefs of one supervisor in this situation would rarely, if ever, matter from a legal point of view, especially if other company employees had been treated differently.

I cannot work overtime every day because of my family commitments. My coworker, who is single and unmarried, works a lot of overtime. Can my boss favor her for an upcoming promotion?
While this may appear to be a form of marital status or familial discrimination, it is probably not illegal. In most states, marital status or familial discrimination is not against the law. Even if your state does recognize these forms of discrimination as illegal, your employer may argue that there is a business justification (other than discrimination) for giving your coworker the promotion, since it is going to the worker who has worked more hours and presumably has contributed more to the business. Moreover, your coworker may be feeling resentful because she is being asked to work more overtime because she is single and her commitments outside work are not considered as important as family commitments by your employer. If you are interested in advancing in your company, you may wish to speak to your supervisor about ways you can advance without working longer hours.

This situation may be prohibited as sex discrimination under Title VII, like in the following examples:

  • A male interviewer informed a female applicant that he had chosen an unmarried, childless male candidate because he would be more “available” and dedicated, and he did not think the plaintiff could handle both her family responsibilities and the demands of the job. Coble v. Hot Springs School Dist. No. 6, 682 F.2d 721 (8th Cir. 1982).
  • Charmaine, a mother of two preschool-age children, files an EEOC charge alleging sex discrimination after she is rejected for an opening in her employer’s executive training program. The employer asserts that it rejected Charmaine because candidates who were selected had better performance appraisals or more managerial experience and because she is not “executive material.” The employer also contends that the fact that half of the selectees were women shows that her rejection could not have been because of sex. However, the investigation reveals that Charmaine had more managerial experience or better performance appraisals than several selectees and was better qualified than some selectees, including both men and women, as weighted pursuant to the employer’s written selection policy. In addition, while the employer selected both men and women for the program, the only selectees with preschool age children were men. Under the circumstances, the investigator determines that Charmaine was subjected to discrimination based on her sex.

Who enforces the law?
Protections under state and local statutes are generally enforced by state or local antidiscrimination agencies, which may be called a “fair employment,” “civil rights,” or “human rights” commission or agency.

If you are an employee of the federal government, the U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency that will accept your complaint of marital or parental status discrimination. For more information on OSC, please see OSC prohibited personnel practices.

How can I file a complaint?
To file a complaint under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state.

If you are an employee of the federal government, the U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency that will accept your complaint of marital or parental status discrimination. For more information on filing a complaint with OSC, please see: how to file an OSC complaint. You can download the form you will use to file a charge at: OSC Forms.

How much time do I have to file a charge of discrimination?
Because there are many sources of federal, state, and local laws relating to discrimination based on marital status and parental status, there are too many different deadlines to summarize here. To protect your legal rights, it is always best to contact OSC, your state or local governmental agency, or an attorney promptly when discrimination is suspected. Another option if you decide to pursue legal action is to file a complaint with the EEOC office or a local EEO office. You may have as few as 180 days to file. To get more information about filing visit http://www.eeoc.gov.

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