When Maryland State Trooper Kevin Knussman's wife was confined to bed after childbirth in 1994, he requested 30 days of full parental leave. After his request was denied, Knussman sued the state police in what was to be the first family medical leave case to directly challenge the denial of rights to a father. The jury awarded him $375,000 for emotional damages in the first-ever sex discrimination verdict in conjunction with the federal Family and Medical Leave Act (FMLA).
His case is no longer unusual-lawsuits involving workers' needs to care for loved ones have risen 400% since 1998. The burgeoning legal area is known as "family responsibility discrimination" (FRD) and is now primarily based on the Equal Employment Opportunity Commission's (EEOC) 2007 FRD guidelines that specify employers' obligations to workers who provide some level of care for young children, disabled relatives or elderly family members.
Thorough understanding is vital because no single federal law specifically prohibits FRD. Employees file suits under varied state and federal regulations, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the FMLA.
Scope of the Problem
By 1996, 25% of America's workforce was providing at least informal care to a family member. As Baby Boomers age and Americans live longer, the number is rising, with millions of so-called "sandwich generation" workers now caring for both elderly relatives and their own children. In January 2008, an expansion of the 1993 FMLA also granted up to six months of unpaid leave to relatives of wounded military personnel. The missed workdays, early departures and on-the-job distractions of caregivers are estimated to cost employers $33.6 billion each year, according to the Met Life Mature Market Institute.
The business impacts are significant. Absenteeism among female employees with caregiving duties cost almost $270 million, and partial absenteeism (extended lunch breaks, early departure, etc.) was estimated at another $327 million. Related workday interruptions added $2.8 billion.
In 2004, a Northwestern University Medical School team analyzed health risk data from 16,500 workers at a major financial company. In two weeks, 10.6% missed an average of 7.7 hours to care for an ill dependent. Caregivers reported higher levels of work limitations, especially related to time management and psychological demands. The more hours devoted to caregiving, the less work was accomplished. Missed time cost the employer more than $240,000 in lost wages, which if extended over a full year, would have exceeded $6 million. And that was only among the survey respondents.
Adjudicated FRD claims rose from 97 cases in 1996 to 481 in 2005. Won by plaintiffs over half the time, at least 20 of those verdicts and awards exceeded $1 million.
One such case involved a male maintenance worker who sued his employer of 25 years, alleging interference with the FMLA. Having cared for his Alzheimer's-stricken father and terminally ill mother, he won a verdict of $11.6 million (later reduced on appeal to an undisclosed amount).
The EEOC is concerned about friction between caregiving responsibilities and job obligations. Sometimes a worker believes this perceived "wall" limited advancement opportunities because it is viewed that the employee is more committed with caregiving than job requirements. In one case, a schoolteacher who gave birth to a disabled child was reassigned as a half-time teacher, half-time resource room staff member. She considered it a demotion that reduced her authority and responsibility, so she sued the school board under the ADA and won.
Elements of Risk
The potential for claims has risen since Burlington Northern v. White, a 2006 Supreme Court gender discrimination decision that provides a legal basis whenever a "reasonable person would find an employment action materially adverse." These are often family values cases, so many juries side with employees. "They've won before conservative and liberal courts," says Joan Williams, distinguished professor of law and director of the Center for Work and Family Law, at the Hastings College of Law in San Francisco. "I've been in a room with management-side employment lawyers saying, 'we do not want these cases before a jury.' They would rather settle."
One reason for more lawsuits is that the bias is often so blatant that it is relatively easy to prove. Williams has seen numerous cases where an employer has basically said, "You're fired. Now you have plenty of time to stay home with your children."
The EEOC also emphasizes potential discrimination against males, based on a stereotype that they are poorly suited for caregiving responsibilities. Even though males took 42% of the 50 million FMLA leaves taken since the act's passage in 1993, other men are frequently denied parental leave or related benefits that women routinely receive. The ACLU's suit on behalf of Kevin Knussman claimed "unlawful discrimination based on gender."
Experts predict more class action lawsuits. FRD violations are a key component in a class action discrimination suit filed against Wal-Mart by more than one million workers.
Mismanagement of flexible schedules or work/life initiatives become risk management issues, says Williams. It is widely documented that use of flexible schedules can create a stigma or block advancement opportunities. Schedule changes, for instance, may have little effect on one employee but greatly disrupt another's caregiving commitments. In some circumstances, that can be litigated as FRD.
Steps For Employers
Training managers is essential to creating a comfortable work environment for caregivers. "It need not be huge, but let managers know what FRD is, why it arises and alternative responses to nip it the bud," says Cynthia Calvert, a Baltimore-based employer defense lawyer. Finding that employers may not know each law protecting caregivers, "I try to make them aware of their potential exposure."
Often, an FRD component can easily be added to an existing training program. Hearing examples helps managers see other ways to handle situations as classic as a woman with new family responsibilities. "A manager may nitpick her work, scrutinize arrival and departure times, and try to make it unpleasant to work there, says Calvert. "This builds liability. If someone has attendance issues; deal with that. Treat them the same way as anyone else."
Another frequent circumstance involves a worker requesting intermittent leave to bring a relative to regularly scheduled medical treatments. "If an employer realizes they [legally] have to allow this, they still become liable if they then discriminate by reducing a bonus, isolating the worker from meetings or not offering an anticipated raise," says Calvert. In the case of the male maintenance worker, his company deliberately set quotas knowing he could not meet them.
Since the EEOC guidelines, some employment lawyers train clients in FRD's scope and how to avoid it. "Many people don't think it's discrimination [when] meant benevolently, such as a manager telling an employee, 'you can't travel now with a baby, so I didn't think you'd want to,'" says Williams. "Don't assume someone doesn't want to travel or be considered for a plum assignment. Just ask."
Collective bargaining sessions, when workers sit down with managers to negotiate what is fair and sensible at the workplace, are a perfect forum for FRD. "Sometimes we educate members about the scope of problems they face, like men discovering they face discrimination in the perception that only women are caregivers," says Judith Scott, general counsel of the Service Employees International Union.
Because of FRD, Scott hopes to see employers "recognize that workers who need the time off can't afford it. We're trying to get federal and state legislation, and bargaining sessions, too. I'd like extended days off for people."
One Employer's Experience
Business reasons to avoid FRD include keeping experienced employees who have client relationships. "People build institutional knowledge," says Calvert. "Alienating or firing them because they become caregivers is not a smart move from an economic standpoint."
Nine out of 10 FMLA-covered employers report the FMLA has a neutral or positive effect on profitability and growth. And innovative approaches are evolving. At IBM and Raytheon, for instance, special "wellness" programs teach caregivers to cope with added duties while maintaining their mental and physical health.
Smaller employers develop successful tactics, too. In 1997, Jim Johnson, president of Johnson Moving & Storage Company, headquartered in Cheyenne, Wyoming, witnessed his wife and full-time attorney, Julie, trying to balance work with raising four children. By surveying his 30 employees, Johnson discovered their caregiving duties included one worker with a terminally ill parent and a single father responsible for transporting his children to and from school. Invited to develop solutions, the staff proposed work-at-home, flex-time and a schedule where non-exempt employees covered for each other in the office.
Their ideas became the corporate culture. At locations in five states, about 30% of the administrative employees were allowed to work any eight hours per day, use flex-time or work-at-home. Lengthy customer surveys assessed performance, work quality and accessibility. The industry accounts receivable average is 45 days; Johnson's is 30. "We're number one in seven of our nine markets," Johnson says.
In fact, working off-site often increases productivity. Without commuting or "water cooler" distractions, Johnson's employees have more work hours and nearly no turnover. The company also accommodates temporary FRD needs. Two vice presidents currently work from home. A manager received leave to spend time with a terminally ill parent. And all staff are expected to pitch in at the office during extenuating circumstances.
"It's a real fallacy that if they're not in front of you, you can't manage them," says Johnson. "When my wife went to three-quarter time, she billed as many hours as a full-time attorney." Initially, her firm paid three-quarters of her previous salary. Yet, after actually evaluating her results, they restored full compensation.
Some experts view FRD's potential impact broadly. "This is a national health care crisis," says Scott. "If we just provide arrangements for people in their own homes to have benefits-and pay [family members] to care for them-it would impact the broader health care system."
Carol Milano is a freelance writer based in New York and a frequent contributor to Risk Management.
