FAMILY RESPONSIBILITY AND CAREGIVER DISCRIMINATION

1. FAMILY RESPONSIBILITY AND CAREGIVER DISCRIMINATION INSHRM October 14, 2008 Presented by Mike Love

2. What is Family Responsibility and Caregiver Discrimination ("FRD")? • FRD is discrimination against employees because of their family care giving responsibilities. Stereotypes of caregivers underlie all FRD claims. (See discussion of stereotypes below.) This fact sets FRD cases apart from other employment claims.

3. What type of claims have FRD litigation involved? • FRD cases have involved numerous claims arising under federal employment statutes ranging from Title VII, Pregnancy Discrimination Act ("PDA"), Americans With Disabilities Act ("ADA"), federal Equal Pay Act ("EPA"), Family Medical Leave Act ("FMLA"), Employee Retirement Income Security Act of 1974 (ERISA), and state causes of actions, as well as common law claims such as wrongful discharge, intentional infliction of emotional distress, negligent infliction of emotional distress, implied covenant of good faith and fair dealing, tortuous interference with contract, and breach of contract.

4. What type of remedies are available to a prevailing plaintiff with an FRD claim? • lost wages; • interest on lost wages; • front pay in lieu of reinstatement; • damages for emotional distress and mental anguish; • punitive damages (if it's a federal claim under Title VII or ADA); • adverse tax consequences on economic loss (this applies to claims brought under RCW 49.60 et seq.); • liquidated damages or double damages (this applies to FMLA claims alleging a willful violation); and • reasonable attorney fees and costs. Depending upon whether it is a statutory claim under either federal or state law, or a common law claim arising under state law, the remedies are liberally broad. For example, a prevailing plaintiff could recover:

5. What is the common element in all cases? • Employee alleges that his or her care giving responsibilities triggered the alleged adverse action that is at issue in the case.

6. Have employers and attorneys representing employers seen an increase in these types of cases? • In the last 10 years employers and attorneys representing employers have seen a 400% increase in FRD claims. • This is significant because over the same period of time all other employment litigation has seen only a 23% increase. • The success rate for plaintiffs in FRD claims is greater than 50%. The success rate is characterized as either the plaintiff successfully defeating a motion for summary judgment brought by the employer; forcing a settlement either through direct negotiations or mediation; or actually prevailing at trial either before a judge or jury. Yes. Here are some key statistics to be aware of relating to FRD claims.

7. What are the reasons for this dramatic increase in FRD claims over the last decade? The reasons are numerous and involve changes in the law, technological advances, and a culture mind set that involves generational, social, economic and political awareness, desire and belief. Some of those reasons are: • Passage of the 1991 amendments to Title VII of the Civil Rights Act which provided additional and more liberal remedies for prevailing plaintiffs. • A generational shift in the employee's desire for a more balanced life. • Increased awareness by employees of their rights, in particular, through the news media and the internet. • Frequent use of web based discussion boards. • Conservative and liberal judges and jurors alike see FRD as a threat to "family values."

8. What type of awards or settlements have prevailing plaintiffs received over the last decade relating to FRD claims? Examples of substantial awards and settlements over the last 10 years: • $11.65 million • $1.8 million • $1.6 million • $940,000 The awards and settlements have been substantial and, unless your company is Microsoft or General Electric, with substantial cash, insurance and other assets your company could face substantial exposure and extreme risk.

9. How do FRD claims normally arise? • A manager or supervisor with stereotypical attitudes about employees, in particular, pregnant employees and female employees with childcare issues, making ill advised comments, actions and decisions that can create a potential claim and exposure for the employer. • Gender stereotyping was first held unlawful in 1989 by the United States Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

10. How are the stereotypes classified? • The first is "descriptive" stereotyping – "How people are presumed to behave." An example of "descriptive" stereotyping is an assumption that mothers do not work as hard as other employees, or that men work harder than women in general. • The second is "prescriptive" stereotyping – "Seeks to prescribe or dictate how members of a particular group should behave." An example of "prescriptive" stereotyping is an employer's decision to terminate a new mother because she should be at home caring for her baby. There are two major stereotypes that a supervisor or manager may have that later results in inappropriate comments, actions and decisions being made in the workplace.

11. Case example: Descriptive Stereotyping • Important facts and evidence which led to the employer's demise: • Female employee who happens to also be an attorney is denied a promotion. • She is a mother with two school aged children. • Claimed she was denied the promotion because she was a mother. • She was advised by the employer that she was denied a promotion because the new management position she was seeking would require extensive traveling, in which it was presumed that she would not be interested because of her family responsibilities. • Despite her consistently excellent performance evaluations, promotions were offered to less qualified men with children and to a woman without children. Trezza v. Hartford, Inc., 1998 WL 912101 (S.D.N.Y.)

12. Case example: Descriptive Stereotyping • Of the 46 managers only seven were females and none of them were mothers with school age children. • A male Sr. Vice President complained to her about the "incompetence and laziness of women who are also working mothers." • "Women are not good planners, especially women with kids." • "You will be home eating bon bons if your husband wins another big verdict." • The general counsel of the legal department in which she worked stated that "working mothers cannot be both good mothers and good workers," saying "I don't see how you can do either job well." • Employer's motion to dismiss was denied. • Employer ultimately settled this case for an undisclosed amount.

13. Case example: Prescriptive Stereotyping • Female employee was terminated after giving birth to her child. • The reason given was that her "place was at home with her child." • This employer expressly based his employment decision, in significant part, on his opinion regarding how a mother should behave. He also based his opinion, in part, on descriptive as opposed to prescriptive stereotypes, asserting his assumption that the worker in question was "no longer dependable since she had delivered a child . . . , that babies get sick sometimes and she would have to miss work to care for her child, and that the employer needed someone more dependable." Bailey v. Scott-Gallaher, Inc., 480 S.E.2d 502 (Va. 1997).

14. What are the most common causes of action? • Title VII disparate treatment claims are by far the most common type of FRD action. The cases referenced above are clearly examples of disparate treatment where there is evidence of discriminatory intent or motivation on the part of the employer. • We have also seen claims under Title VII, however, of disparate impact which does not involve proving a discriminatory intent or motivation, but instead that the employer had a facially neutral policy that when applied had a discriminatory impact on a protected class, in this case, caregivers. • Important statistics to keep in mind when talking about disparate impact claims is that 82% of all women become mothers during their working lives. Therefore it is not surprising that facially neutral policies could have and do have an impact on female caregivers. Such policies include rules that workers cannot use sick days to care for sick family members, restrictions on leave or absences within a certain period of time, compensation structures that reward or penalize employees based on the number of hours they work rather than productivity or performance during working hours, and definitions of "full-time" jobs as requiring fifty or more hours per week (which excludes close to all mothers and, therefore, nearly 78% of women.)

15. What about pregnancy discrimination? It's All About the Moms! • Pregnancy discrimination is on the rise and is obviously another common type of FRD action. U.S. Equal Employment Opportunity Commission (EEOC) has documented a more than 30% increase in the number of pregnancy discrimination complaints filed with the EEOC and state enforcement agencies between 1992 and 2005. • Two examples of pregnancy discrimination involve a violation first where the employer refuses to hire a pregnant applicant based on the assumption that she will not return to work immediately after the birth of her child or that she will require a significant amount of leave. Wagner v. Dillard Department Stores, Inc., 17 Fed.Appx. 141, 149 (4th Cir. 2001). Another example with a different twist is where the employer takes adverse action against an employee because she may become pregnant. Kuest v. Regent Assisted Living, Inc., 43 P.3d 23, 26 (Wash. Ct. App. 2002) (The employee alleged that she was fired based on her potential to become pregnant. The court believed that the prohibition against sex discrimination under RCW 49.60.180 encompassed discrimination based on a women's potential to become pregnant and her need to have time away from work for childbearing. If the employer terminated the employee based on her potential to become pregnant, it committed sex discrimination prohibited by Washington law.)

16. Case example: Walsh v. National Computer Systems, Inc., 332 F.3d 1150, 1154, 1156 (8th Cir. 2003). • Important facts and evidence which led to the employer's demise: • Female employee alleged that she was subjected to a hostile work environment in violation of the PDA because she was a women who had been pregnant and taken maternity leave, and may become pregnant again. • The female employee was the only employee required to provide advance notice and documentation of medical appointments. • After she returned from maternity leave, her female supervisor evinced hostility towards her. She told her "you better not get pregnant again," threw a telephone book at her with instructions to find a pediatrician who was open after hours, scrutinized her hours, increased her workload without additional pay, and posted notes on her cubicle when she was absent stating "child was sick.“

17. Case example: • This particular female supervisor also got the bright idea that she should deny this female employee flexible scheduling so that she could leave the office at 4:30 p.m. to pick up her child before the childcare center closed at 5:00 p.m. Other employees were given flexible schedules allowing them to leave at 3:45 p.m. • During the course of litigation defense counsel attempted to argue that caretaker discrimination is not protected by Title VII. The Eighth Circuit Court of Appeals disagreed. The court found sufficient evidence to support a jury verdict for the plaintiff based on a violation of the PDA where she showed that her supervisor discriminated against her because she had been pregnant, had taken maternity leave, and might become pregnant again. • As a result, the court affirmed the jury's verdict and award of $625,000 in damages.

18. What about claims of retaliation in FRD cases? The United States Supreme Court has redefined the term "adverse action" which will have a serious impact on FRD retaliation claims. Burlington Northern and Santa Fe Railway Company v. White, 126 S. Ct. 2405, 2409 (2006). • The United States Supreme Court in this case rejected the requirement that the adverse action must be related to employment in order for the plaintiff to prevail in a retaliation claim. The Court set the following standard: "A plaintiff must show that a reasonable employee would have found the challenged action materially adverse" in light of the particular circumstances surrounding the action, which means that the challenged action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.“ • The Court's decision effectively eliminated the protection previously provided to employer's relating to lateral transfers which several prior court decisions had ruled would not be materially adverse to the plaintiff, especially if the lateral transfer involved the same job title, same pay and benefits, and same job duties. • The Court also provided an interesting example of how a caregiver situation could give rise to a claim of retaliation under the FRD relating to a lateral transfer. For example, a schedule change may ordinarily matter little to a male employee or a female employee with no children, but to a mother a schedule change could be materially adverse and give rise to a potential claim.

19. What about the men? • Men can and do bring FRD claims. Roughly 8% of all FRD claims are brought by male employees. Male plaintiffs have also seen a 50% success rate. • Men's complaints fall into three general areas: (1) denial of, interference with, or retaliation for taking leave to care for a family member (FMLA); (2) denial of flexible work arrangements or family leave available to women and not men (Title VII); and (3) discrimination based on an association with a disabled family member (ADA).

20. What about the ADA? • With regard to the ADA, plaintiffs (both women and men) have been successful in proving they were discriminated against because they care for a person with a disability. This protection is afforded based on the statutory language of the ADA that extends coverage to employees who have a "relationship or association" with disabled individuals. • The EEOC has interpreted the "association" provision to prohibit discrimination targeted at a mother or other caregiver who takes time off from work to care for a family member with a disability. 29 C.F.R. § 1630.8 (2006). • An important point relating to the EEOC regulations supplementing the ADA and which protects caregivers is that it is not limited to only familial relationships, but also covers a "family, business, social or other relationship or association."

21. What about Washington law and future changes in the law? • Keep in mind, however, that Washington law, in particular, RCW 49.60 et seq. does not require the plaintiff to prove that his or her friend or partner has a condition or impairment that "substantially limits" a "major life activity" in order to be legally disabled, nor does it require that the impairment be a permanent or long term condition. Therefore, it could be applied to a caregiver situation where the employee requires leave to care for a friend or partner with a temporary condition or impairment. • Furthermore, Congress has already recently passed a bill which the President has signed into law amending the ADA to make it much easier for a plaintiff to establish that he or she is disabled under the law. This bill has legislatively overruled several Supreme Court opinions which made it much more difficult to meet the definition of disabled under the ADA.

22. What about elder care? Why is elder care an issue for employers and employees? • 1 in 4 employed men and women have elder care responsibilities. • Nearly 1 in 10 workers provide care for both children and elders. A few years back the Ninth Circuit Court of Appeals addressed this issue. This issue involving our aging American population is also affecting the workplace.

23. Case example: • Important facts and evidence which led to the employer's demise: • Employee's father became severely depressed after employee's sister was murdered. • Employee requested one month of unpaid leave to care for his father in another state. • His employer did not inform him of his rights under the FMLA. • Employee agreed not to work for another employer. • When the employee requested additional unpaid leave and to be allowed to work for another employer, the employee and his employer agreed that he should voluntarily resign and that he would be rehired when he returned, provided he returned to work within six months of his original leave date. Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir. 2002).

24. Case example: Scamihorn v. General Truck Drivers, 282 F.3d 1078 (9th Cir. 2002). • When employee sought to return to work, he found out that he would have to start over as a probationary employee with no seniority because the Union would not allow him to return to his previous position and seniority level. • Employee sued both his employer and Union alleging a violation of FMLA. • The court reversed the lower court's order granting the employer's summary judgment motion. The court found that the employee's father's depression was the type of "serious health condition" the FMLA was intended to address. The court further found that a genuine issue of material fact existed warranting a trial of this matter on whether the employee could ultimately prove that the assistance he provided for his father constituted "care" as defined by the FMLA.

25. What are the lessons to be learned from all of this? • Beware of managers with "loose lips." Employers must appropriately vet, not only the hiring process relating to employees, but also the managers and supervisors who will be responsible for managing the workplace. Employers must place people into management positions who have the appropriate character and ethical mindset, as well as emotional intelligence to succeed as a manager and, just as important, not place the employer at risk for legal exposure. • Review all relevant employment policies and actions for possible FRD liability. The employer should also review and, if necessary, amend the employer's Equal Employment Opportunity Statement to include "family and caregiver responsibility", as well as amending anti-harassment, anti-retaliation and complaint procedures to include FRD prevention.

26. What are the lessons to be learned from all of this? • Put in place an FRD prevention program similar to the anti-harassment programs you have seen, read or heard about and implemented. The prevention program should obviously involve training of supervisors and managers on the topic of FRD prevention. (What this may involve is having your supervisors and managers being required to attend this type of prevention program.) This is important for two reasons: First, "ignorance of the law is no defense". Secondly, employers can limit their exposure to damages if they can prove that they had such a prevention policy or program in place before the alleged violation and that managers were provided training on this topic.