By Lisa Peck
“Don’t bring your personal life to the office” is a time worn adage that is simply not possible for a vast proportion of the modern-day workplace. Today’s employees are challenged to meet their workplace expectations in the face of what are often significant family care issues, as well as being a primary breadwinner. One reason for this is the influx of women with children into the workplace; less obvious reasons involve society’s changing concept of “family” to embrace multi-generations in one household, non-traditional families, blending of families (or, step-families), same-sex partnerships, and workers of many different stages of life and family circumstance.
As a result, Family Responsibility Discrimination (“FRD”) – employment discrimination based on an employee’s responsibilities to provide care for family members – has gained recognition as a form of workplace discrimination comparable to gender, disability, race, national origin, or religious discrimination.
FRD is not only directed at new mothers. It rears its head when an employee must care for any aging, seriously ill, or disabled family member, whether it is a spouse diagnosed with Multiple Sclerosis, an aging parent or grandparent showing signs of dementia, a child born with a serious disability who will require lifelong medical intervention, or a sibling seriously injured in a car accident.
Without protection against FRD, these real-life, difficult, and everyday challenges may result in termination of employment, or force employees into a wrenching choice between preserving their livelihood and caring for their loved ones.
FRD is most often recognized when an employer discriminates against an employee because of family care responsibilities, or treats the employee less favorably than other employees based on false assumptions that caregiving responsibilities will impair job performance or lessen job commitment. FRD also can stem from an employer’s good intentions in trying to “help” an employee’s caregiving responsibilities by taking such actions as decreasing hours, reassigning duties, or reducing job functions.
The law does not consistently recognize FRD as a distinct form of workplace discrimination, but there is recourse for some situations. Under federal law, the Family & Medical Leave Act (“FMLA”) protects eligible employees who need leave to care for a seriously ill family member. The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act preclude discrimination against a qualified employee based on her “association” or relationship with someone with a known disability. The U.S. Equal Employment Opportunity Commission issued enforcement guidance on FRD, and proactively suggested “best practices” to employers to prevent FRD. The Employment Retirement Income Security Act (“ERISA”) prohibits employer discrimination against an employee that interferes with his exercise of rights under an employee benefit plan.
California provides similar protections. California’s Family Rights Act precludes discrimination and offers job protection for eligible employees needing time off to care for a seriously ill family member, similar to FMLA protections. Akin to the ADA’s association clause, the California Court of Appeals in Rope v. Auto-Chlor System of Washington, Inc., (Cal. App 2d, 2013) recognized an employee’s right to seek recourse under California’s Fair Employment and Housing Act (“FEHA”) for association-based disability discrimination. California offers Paid Family Leave (“PFL”) under its disability benefits program (providing wage replacement to those workers taking leave for family care), and legislation recently passed to enlarge the definition of “family” to include grandparents, grandchildren, siblings and parents-in-law for purposes of PFL.
However, California rejected corresponding legislation to provide job protection to workers who take PFL, and it declined to extend employment discrimination protections under the FEHA to include “familial status.” In contrast, San Francisco adopted a “Family Friendly Workplace Ordinance” effective January 2014, applicable to all San Francisco City and County employees working for employers with 20 or more city-based employees. It further gives covered employees the right to ask for flexible or “predictable working arrangements” for their family caregiving responsibilities.
This is the wave of the future. Family care responsibilities affect all kinds of workers: women/men, young/old, single/attached, parents/childless, low/high wage earners, public/private employees, and employers of all sizes and industries. If you work and you have family, FRD may well affect you and your family at some point in your working life. Grassroots efforts are essential to creating pressure for change.
Our community is made up of families, and FRD protection has long since become a community matter. So, by all means – bring your personal life to work – and to local, state and national officials – to insure legal protection for everyone.
About Elizabeth Peck
Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California. She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA. Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.
Excellent article, Lisa. I am filing a new CFRA case involving an employee caring for a terminally ill mother, and I may spend a few days engaging in further reflection based upon this read.