Preventing Family
Responsibilities Discrimination
Cynthia Thomas Calvert, President, Workforce 21C
Cynthia Thomas Calvert,
• President, Workforce 21C
• Employment lawyer
• Nationally-recognized expert in Family
Responsibi...
Agenda
FRD in today’s workplace
Why FRD happens and how it hurts your business
How to tell if your company has FRD
Five st...
Poll Question #1
How would you describe your knowledge
of FRD?
1.Zilch. This is all new to me.
2.Limited. I have heard the...
FRD in Today’s Workplace
© Cynthia Thomas Calvert
The Faces of FRD
A mother of young children who is denied promotions
A father who works part-time for childcare reasons
wh...
FRD Is…
Employment discrimination against mothers and
fathers of young children, pregnant women, and
caregivers for family...
How Does FRD Violate the Law?
• District of Columbia expressly prohibits FRD in
employment
• Minnesota and New York prohib...
What about FRD and the Law for the
Rest of Us?
• Title VII and PDA & state anti-discrimination statutes
• Family and Medic...
FRD Case Statistics
•Over 4400 FRD cases nationally
•Plaintiffs come from all industries, all sizes
of employers, all leve...
How FRD Happens &
How FRD Hurts Business
© Cynthia Thomas Calvert
First Reason FRD Happens
Workforce/Workplace mismatch
– Ideal worker
– Few workers have another adult at
home taking care ...
Almost everyone will be a caregiver at some
point in his or her life.
© Cynthia Thomas Calvert
Second Reason FRD Happens
• Bias (assumptions) about caregivers, mothers,
fathers, pregnant women, flexible schedule
worke...
More on Bias
• We notice and remember things that are
consistent with our biases
– Example: a supervisor is more likely to...
Can Biases Be True?
Sometimes yes, but that won’t protect employers
– Must treat employees as individuals
– No “preemptive...
Unfair Consequences of True
Biases
Caregivers for whom “the stereotypes are true”
may be affected unfairly
– Ex: A mother ...
FRD Against Mothers
• Firing mothers for taking leave to
care for sick children
• Giving promotions to women
without child...
The Maternal Wall
Common biases against mothers
• Not as competent
• Not as committed
© Cynthia Thomas Calvert
Motherhood as a Choice
Employees may choose to be caregivers, but that doesn’t mean that
they choose to be discriminated a...
FRD Against Pregnant Workers
Firing workers when they
announce their pregnancy
Demoting pregnant workers
to “an easier job...
Maternal Wall Again
Common biases about pregnant women
• Not as competent
• Not as committed
• Not dependable
• Will just ...
FRD Against Fathers
Demoting fathers who take time off
to care for children
Discouraging paternity leave
Punishing men who...
The Fatherhood Cliff
A little bit involved makes him a
great guy
A lot involved makes him
• Not committed
• Not ambitious
...
FRD Against Workers with Elder Care
Responsibilities
Terminating workers who take
leave to care for elders
Harassment once...
Elder Care Bias
Common biases about those who care for elders:
• Not reliable
• Not available
• Absent too much
• Distract...
Poll Question #2
Have you seen or heard about caregiver bias
affecting employees you know?
1.No. None of this sounds famil...
The Obvious Costs to Business
• Litigation costs
oVerdicts, settlements
oPlaintiff’s attorney’s fees, defense attorney’s
f...
More Costs to Business
• Business disruption
• Damage to reputation
• Reduced diversity
© Cynthia Thomas Calvert
The Hidden Costs to Business
• Non-litigation costs
oDistraction, stress, damage to morale, lost
productivity
oLoss of exp...
How to Tell If Your Company Has FRD
© Cynthia Thomas Calvert
The Obvious
Lawsuit
• Pregnancy discrimination
• Sex discrimination involving mothers or fathers
o Failure to promote
o Se...
The Less Obvious
Demographics
– Few or no mothers of young children in senior management
– Few men take paternity leave
– ...
The Hidden
Patterns
• Company has a history of terminating pregnant women
(allegedly for a variety of reasons)
• Women ten...
The Bad Apple
Company overall is fine, but in one department:
• Caregivers who take leave are counseled
about missing too ...
Five Steps to Prevent FRD
© Cynthia Thomas Calvert
1) Provide Training
• Training for HR
• Training for Supervisors
• Stand-alone or as part of
diversity training
• Use mult...
More on Training: Supervisors
Topics for Supervisors:
• What is FRD?
• Legal bases for liability
• How it arises (demograp...
More on Training: HR
Topics for HR:
• What is FRD?
• Legal bases for liability
• How it arises (demographics, bias)
• Comm...
2) Review Your Company’s Policies
Do the following policies unfairly
impact caregivers?
• Attendance
• Leave
• Promotion
•...
• Stand-alone policy
• Add to existing policy
Implement an Anti-Discrimination Policy
© Cynthia Thomas Calvert
3) Reduce Unconscious Bias
Develop initiative to reduce bias about male and
female caregivers, women, employees of color,
...
4) Create HR Oversight
Set up HR oversight for trigger areas
• New supervisor
• Employee announces pregnancy
• Employee no...
HR Oversight: What to Look For
Tip offs:
• Suddenly negative evaluations
• Changes in schedule, location, duties (demotion...
HR Oversight: Measure Progress
Look at demographics
• Number of caregivers in company and where they work
o Women with you...
5) Create a Work Coverage Plan
Plan in advance for how work will get done while
employee is on leave
• Make a plan for eve...
Work Coverage Plan: Contents
• Major duties
• Marginal duties
• Prioritize each
• Percent of time spent on each
• Plan how...
What to do if FRD Happens Anyway
© Cynthia Thomas Calvert
Investigate
• Recognize the FRD issues
• Gather the facts
o Employee’s performance, attendance
o How others have been trea...
Poll Question #3
As a result of participating in today’s
webinar, what do you plan to do about FRD in
your workplace?
1.Ge...
Thank-you for participating
If you have any questions, please feel free
to email them to:
Cynthia Thomas Calvert, Presiden...
of 51

Preventing Family Responsibilities Discrimination

Family Responsibilities Discrimination (FRD), also known as Caregiver Discrimination, is employment discrimination against workers based on their family caregiving responsibilities. It may affect parents of young children, pregnant women, employees with an ill family member or with aging parents or sick spouses or partners. Discrimination can include being rejected for a job or promotion, being denied leave or flexibility to which the employee is entitled, or being demoted, harassed, or fired when employers allow stereotypical notions of caregivers to affect their work-related decisions. Employers who discriminate against employees because of their caregiver responsibilities could face legal action, reputation damage and low employee morale, so it’s important to put in place measures to prevent this type (and all types) of discrimination.
Published on: Mar 4, 2016
Published in: Business      
Source: www.slideshare.net


Transcripts - Preventing Family Responsibilities Discrimination

  • 1. Preventing Family Responsibilities Discrimination Cynthia Thomas Calvert, President, Workforce 21C
  • 2. Cynthia Thomas Calvert, • President, Workforce 21C • Employment lawyer • Nationally-recognized expert in Family Responsibilities Discrimination law • Works with employers to manage today’s evolving workforce: • prevent discrimination based on family caregiving, gender, and pregnancy • advance women • reduce unconscious bias • implement effective flexible work programs • create inclusive workplace cultures © Cynthia Thomas Calvert
  • 3. Agenda FRD in today’s workplace Why FRD happens and how it hurts your business How to tell if your company has FRD Five steps to prevent FRD • Training • Policies • Reduce unconscious bias • Create a coverage plan • HR oversight What to do if it happens anyway © Cynthia Thomas Calvert
  • 4. Poll Question #1 How would you describe your knowledge of FRD? 1.Zilch. This is all new to me. 2.Limited. I have heard the term, but I don’t know much about it. 3.Growing. I have been learning about it and can see how it affects workplaces. 4.In depth. I know a lot about it and want to work or have been working on FRD issues in my workplace.
  • 5. FRD in Today’s Workplace © Cynthia Thomas Calvert
  • 6. The Faces of FRD A mother of young children who is denied promotions A father who works part-time for childcare reasons who is harassed A baby boomer who takes his father to chemo who is terminated A pregnant woman who is denied a bonus A woman with a son who has disabilities who is denied flexibility that others get © Cynthia Thomas Calvert
  • 7. FRD Is… Employment discrimination against mothers and fathers of young children, pregnant women, and caregivers for family members such as sick spouses/partners, aging parents, and children with disabilities. Also known as caregiver discrimination © Cynthia Thomas Calvert
  • 8. How Does FRD Violate the Law? • District of Columbia expressly prohibits FRD in employment • Minnesota and New York prohibit employment discrimination based on family status • Alaska prohibits discrimination based on parenthood • Connecticut prohibits information about family responsibilities unless related to BFOQ • More than 90 cities and counties prohibit FRD © Cynthia Thomas Calvert
  • 9. What about FRD and the Law for the Rest of Us? • Title VII and PDA & state anti-discrimination statutes • Family and Medical Leave Act & state leave laws • Americans with Disabilities Act • Equal Pay Act • State pregnancy accommodation laws • Common law (wrongful discharge, contract, fraud, infliction of emotional distress, promissory estoppel) © Cynthia Thomas Calvert
  • 10. FRD Case Statistics •Over 4400 FRD cases nationally •Plaintiffs come from all industries, all sizes of employers, all levels of workers •88% of cases brought by women •Plaintiffs win at trial or settle favorably about 50% of the cases •Highest individual verdict: $11.65 million •Highest class action verdict: $250 million -- Source: The Center for WorkLife Law © Cynthia Thomas Calvert
  • 11. How FRD Happens & How FRD Hurts Business © Cynthia Thomas Calvert
  • 12. First Reason FRD Happens Workforce/Workplace mismatch – Ideal worker – Few workers have another adult at home taking care of family matters • 50% of the workforce is female • Males are providing more care • 83% of workers are in families where all adults are in the paid workforce • Need for elder care is growing © Cynthia Thomas Calvert
  • 13. Almost everyone will be a caregiver at some point in his or her life. © Cynthia Thomas Calvert
  • 14. Second Reason FRD Happens • Bias (assumptions) about caregivers, mothers, fathers, pregnant women, flexible schedule workers, workers who take leave affects decision makers • Underlying assumptions can affect everyday interactions in the workplace by shaping: - expectations - perceptions - responses - behavior © Cynthia Thomas Calvert
  • 15. More on Bias • We notice and remember things that are consistent with our biases – Example: a supervisor is more likely to notice and remember when a mother takes a day off to be at home with her sick child than when a single, child-free woman takes a day off to stay home and wait for the plumber FRD = negative employment decisions or actions based on bias, not based on actual performance © Cynthia Thomas Calvert
  • 16. Can Biases Be True? Sometimes yes, but that won’t protect employers – Must treat employees as individuals – No “preemptive action” – Even if biases are true, assumptions based on biases may not be • Example: It is true that most caregivers will drop everything if a family member has a medical emergency, but that doesn’t mean that caregivers are not dependable the other 99% of the time © Cynthia Thomas Calvert
  • 17. Unfair Consequences of True Biases Caregivers for whom “the stereotypes are true” may be affected unfairly – Ex: A mother may be absent to take care of sick children and will be terminated, whereas a woman without children who is absent the same amount of time for her own illness or for a personal reason (oversee house renovations, train for marathon) will not be. © Cynthia Thomas Calvert
  • 18. FRD Against Mothers • Firing mothers for taking leave to care for sick children • Giving promotions to women without children or to fathers rather than to more qualified mothers • Making mothers’ lives miserable at work, hoping they will quit Why? © Cynthia Thomas Calvert
  • 19. The Maternal Wall Common biases against mothers • Not as competent • Not as committed © Cynthia Thomas Calvert
  • 20. Motherhood as a Choice Employees may choose to be caregivers, but that doesn’t mean that they choose to be discriminated against – Example: a woman may choose to have a baby, but that doesn’t mean she chooses to be passed over for promotions – Negative treatment as a “consequence” of choice is an admission of discrimination – Men are not usually given “consequences” for becoming fathers, so such discrimination is sex discrimination under the law “Choice and discrimination are not mutually exclusive.” --Joan Williams © Cynthia Thomas Calvert
  • 21. FRD Against Pregnant Workers Firing workers when they announce their pregnancy Demoting pregnant workers to “an easier job” Putting pregnant workers on medical leave Not promoting pregnant women Making pregnant women’s jobs harder, hoping they will quit © Cynthia Thomas Calvert
  • 22. Maternal Wall Again Common biases about pregnant women • Not as competent • Not as committed • Not dependable • Will just quit Benevolent stereotyping © Cynthia Thomas Calvert
  • 23. FRD Against Fathers Demoting fathers who take time off to care for children Discouraging paternity leave Punishing men who have childcare responsibilities Passing fathers over for promotion Social isolation and harassment Denial of flexibility © Cynthia Thomas Calvert
  • 24. The Fatherhood Cliff A little bit involved makes him a great guy A lot involved makes him • Not committed • Not ambitious • Not a team player • Not dependable © Cynthia Thomas Calvert
  • 25. FRD Against Workers with Elder Care Responsibilities Terminating workers who take leave to care for elders Harassment once caregiving obligations become known Schedules changes, removal of flexibility trying to force worker to quit © Cynthia Thomas Calvert
  • 26. Elder Care Bias Common biases about those who care for elders: • Not reliable • Not available • Absent too much • Distracted, less productive • Will take long leaves © Cynthia Thomas Calvert
  • 27. Poll Question #2 Have you seen or heard about caregiver bias affecting employees you know? 1.No. None of this sounds familiar. 2.Maybe so. Some employment decisions I am familiar with may have been affected by bias. 3.Absolutely. I know bias has affected the way some employees have been treated.
  • 28. The Obvious Costs to Business • Litigation costs oVerdicts, settlements oPlaintiff’s attorney’s fees, defense attorney’s fees • Estimate: $150,000 - $250,000 for a typical case © Cynthia Thomas Calvert
  • 29. More Costs to Business • Business disruption • Damage to reputation • Reduced diversity © Cynthia Thomas Calvert
  • 30. The Hidden Costs to Business • Non-litigation costs oDistraction, stress, damage to morale, lost productivity oLoss of experienced, trained employees with client relationships oDamage to recruiting oIncreased likelihood of additional lawsuits or regulatory enforcement © Cynthia Thomas Calvert
  • 31. How to Tell If Your Company Has FRD © Cynthia Thomas Calvert
  • 32. The Obvious Lawsuit • Pregnancy discrimination • Sex discrimination involving mothers or fathers o Failure to promote o Selection for RIF o Harassment • FMLA o Denial of leave for caregiving o Retaliation for taking caregiving leave © Cynthia Thomas Calvert
  • 33. The Less Obvious Demographics – Few or no mothers of young children in senior management – Few men take paternity leave – Few men work a formal flexible work arrangement – Most important work is done by noncaregivers © Cynthia Thomas Calvert
  • 34. The Hidden Patterns • Company has a history of terminating pregnant women (allegedly for a variety of reasons) • Women tend to quit within months of returning from maternity leave • Layoffs include a disproportionate number of caregivers • Employees who work flexibly or who have taken leave are not promoted © Cynthia Thomas Calvert
  • 35. The Bad Apple Company overall is fine, but in one department: • Caregivers who take leave are counseled about missing too much work or pulling their own weight • Caregivers receive more negative evaluations • Caregivers are punished more harshly for infractions, perhaps by a supervisor who is trying to make them quit • Schedules are changed to make it more difficult for caregivers to arrange child care or elder care • Personnel files of caregivers are “papered” to justify termination © Cynthia Thomas Calvert
  • 36. Five Steps to Prevent FRD © Cynthia Thomas Calvert
  • 37. 1) Provide Training • Training for HR • Training for Supervisors • Stand-alone or as part of diversity training • Use multiple formats (in person, online, one-on-one, written) • Multiple sessions or refreshers • Embed in culture © Cynthia Thomas Calvert
  • 38. More on Training: Supervisors Topics for Supervisors: • What is FRD? • Legal bases for liability • How it arises (demographics, bias) • Common assumptions about caregivers • Business case for retaining caregivers • Company policies • Techniques for reducing influence of bias in decisions © Cynthia Thomas Calvert
  • 39. More on Training: HR Topics for HR: • What is FRD? • Legal bases for liability • How it arises (demographics, bias) • Common assumptions about caregivers • Business case for retaining caregivers • Company policies • How to recognize an FRD problem • Necessary oversight to prevent problems (recognizing triggers) • How to investigate an FRD claim • When to involve legal counsel © Cynthia Thomas Calvert
  • 40. 2) Review Your Company’s Policies Do the following policies unfairly impact caregivers? • Attendance • Leave • Promotion • Flexible Work Arrangements • Compensation and benefits • Performance evaluations © Cynthia Thomas Calvert
  • 41. • Stand-alone policy • Add to existing policy Implement an Anti-Discrimination Policy © Cynthia Thomas Calvert
  • 42. 3) Reduce Unconscious Bias Develop initiative to reduce bias about male and female caregivers, women, employees of color, religion, sexual orientation, dis/ability, age, etc. •Training •Counter examples •Encourage social interaction among groups •Ensure committees are heterogeneous •Communicate the business case for inclusion © Cynthia Thomas Calvert
  • 43. 4) Create HR Oversight Set up HR oversight for trigger areas • New supervisor • Employee announces pregnancy • Employee notifies of family medical issue • Employee makes leave request • Employee returning from leave • Employee requesting flexible work schedule © Cynthia Thomas Calvert
  • 44. HR Oversight: What to Look For Tip offs: • Suddenly negative evaluations • Changes in schedule, location, duties (demotion) • Strict application of rules to caregiver but not to others • Denial of promotion • Sudden goal increases, changes in territory, or PIP • Termination © Cynthia Thomas Calvert
  • 45. HR Oversight: Measure Progress Look at demographics • Number of caregivers in company and where they work o Women with young children in upper management o Who works on the most important projects • Length of maternity and paternity leaves • Who works flexibly and for how long • Promotion and compensation after family leave or flexible work schedule • Terminations (voluntary and not) and layoffs © Cynthia Thomas Calvert
  • 46. 5) Create a Work Coverage Plan Plan in advance for how work will get done while employee is on leave • Make a plan for every employee • Based on assumption everyone will be gone 2 – 6 months at some point during his/her career oSets expectations in accordance with reality oReduces inconvenience, reactivity oReduces backlash by actively managing workload • Update annually when reviewing employee’s performance © Cynthia Thomas Calvert
  • 47. Work Coverage Plan: Contents • Major duties • Marginal duties • Prioritize each • Percent of time spent on each • Plan how each duty will be covered: o Reassignment/cross-training o Temporary or contract worker o Outsourcing o Left undone © Cynthia Thomas Calvert
  • 48. What to do if FRD Happens Anyway © Cynthia Thomas Calvert
  • 49. Investigate • Recognize the FRD issues • Gather the facts o Employee’s performance, attendance o How others have been treated o Timeline of employer knowledge of caregiver status, protected leave requests, leave, alleged negative treatment o Comments about employee • Summarize evidence (i-Sight is valuable resource) • Determine if law was violated (work with counsel) • Communicate to complaining party, take corrective action © Cynthia Thomas Calvert
  • 50. Poll Question #3 As a result of participating in today’s webinar, what do you plan to do about FRD in your workplace? 1.Get more information about FRD. 2.Make others in my workplace aware of FRD and its impact on businesses. 3.Take active steps to prevent FRD, such as training and creating work coverage plans. 4.Nothing. I will wait until my company is sued or loses valuable employees.
  • 51. Thank-you for participating If you have any questions, please feel free to email them to: Cynthia Thomas Calvert, President, Workforce 21C CynthiaCalvert@CynthiaCalvert.com www.workforce21c.com Joe Gerard, Vice President Marketing and Sales j.gerard@i-sight.com © Cynthia Thomas Calvert

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