We all appreciate that an employer cannot take an adverse employment action against an employee on the basis of the employee’s sex/gender.  Such adverse employment actions are, of course, prohibited by federal, state and/or local anti-discrimination laws. Keep in mind that adverse employment actions include not only the obvious things, i.e., termination, suspension, demotion, reduction in pay, but also include less obvious things such as transfer to an undesirable position, assignment, or shift, failure to offer overtime, failure to offer desired assignments, etc. 

However, what may not be so well known is the recent trend of employees filing employment discrimination lawsuits claiming to have been discriminated against because of family responsibilities. A recent study conducted by the Center for WorkLife Law at the University of California Hastings College of Law found that the number of such lawsuits has increased from approximately 100 cases in 1996 to almost 500 cases in 2005. This dramatic increase is surprising given the fact that the study also found that overall employment discrimination lawsuits had decreased by 23 percent between 2000 and 2005. 

These cases have been termed “family care discrimination” or “family responsibilities discrimination” and have been viewed by courts as a form of sex/gender discrimination.  A typical case occurs when an employee suffers an adverse employment action based on stereotypes about how the employee will or should act because of the employee’s family caregiving responsibilities. These caregiving responsibilities could involve providing care for not only children, but also elderly or disabled parents or family members. While this is not necessarily a new protected class, these recent cases give employers something else to keep in mind when dealing with their employees.

Accordingly, employers should be aware of family responsibilities issues and take steps to reduce the chance that they will face a claim of family responsibilities discrimination.  Such steps could include:

• Reviewing personnel policies and procedures to identify and correct potential problem areas;
• Providing training to make supervisors aware that employment decisions cannot be based, even in part, on preconceived notions about how the employee will or should act based on the employee’s family situation;
• Making sure that employment decisions, both positive and negative, are based on job performance and abilities; and
• Maintaining documentation supporting employment decisions.

As with other forms of employment discrimination, claims cannot be entirely prevented, but steps can be taken that will minimize the likelihood that claims will be brought and/or will be successful.