“How’s the Family?”: Family-Responsibilities Discrimination In Job Interviews

We hope that most interviewers know it is inappropriate to ask in an interview: “How old are you” (you can ask if the person is 18 years of age or older) or “Do you celebrate Ramadan?”  There is another danger zone in interviewing, which is often unrecognized by employers but which can get them into just as much trouble: questions pertaining to an applicant’s family or family responsibilities.3d family

Innocent ice-breaker discussions often seem to involve questions about the applicant’s family.  I see this happen most often with female interviewers, who tend to find family and children as a common ground with the applicant.  Sports—the default for men—is a much safer topic. Go Eagles/Phillies/Flyers!

The Center for WorkLife Law has published a helpful alert for employers as it pertains to what NOT to ask in an interview regarding the applicant’s family. As the alert emphasizes – focus your questions on the candidate’s ability to do the job. An employer (or potential employer) should not care about the why or how, only whether the job can be done. You do not have to treat an employee any differently because the reason for his or her failure to perform adequately is child-care responsibilities at home. Just remember to focus on the performance, not the reason. The WorkLife Law alert gives other helpful examples and guidance worth reviewing.

Marital Status Discrimination: First Comes Love . . . Then Comes Marriage . . . Then Comes Preferential Treatment at Work?

Delaware has long since included “marital status” in its list of categories (along with race, sex, gender, religion, and sex) protected by the state’s anti-discrimination statute. But what is marital status discrimination? Does it really occur, and has an employee ever filed a claim based on alleged marital status discrimination? A new Policy Briefing from the Sloan Work and Family Research Network (pdf) gives some insight into this area of discrimination rarely discussed.

Marital-status discrimination occurs when a person is granted or denied rights based on his or her marital status. It appears there is no written decision in Delaware where an employee has claimed discrimination based on his or her marital status. Several cases have been brought in other jurisdictions and they give Delaware employers a bit of insight into their potential exposure under the statute. As noted in the Policy Paper, cases have been brought by a male employee alleging he was denied a promotion because he was unmarried, and a single mother who alleged she was discriminated against based on her unmarried status.

Studies have shown that employers often treat employees differently based on their marital status in the following ways:

– Married men are paid more and offered promotions more than single men (even when controlling for work performance and seniority);

– Employers may subsidize health benefits for spouses and sometimes domestic partners, but no offer no additional compensation for single employees;

– Work-family policies are often written to address married employees with children; and
– Unmarried and single workers without children are expected to travel more for work; they also feel that they have to work at times that are not expected for working parents. In addition, parents are more likely to get time off from work than nonparents.

It is interesting because many of these differences seem to relate more to parental status, rather than marital status. Indeed, a divorced or unmarried worker with child-care responsibilities may well be afforded accommodations in the workplace based on these responsibilities that a childless worker is not. Because parental status is not a protected category (although assumptions about a worker’s performance because of their childcare responsibilities may present a sex discrimination claim under Title VII), an employer may be able to defend a claim by presenting evidence that differential treatment was not the result of marital status, but parental or caregiver status.

Nevertheless, an employer would still face exposure if single employees were not afforded the same protections and accommodations in the workplace as married employees. With work-life balance remaining a popular topic of discussion, and lots of layoffs resulting in bitter former-employees looking for a payout – we are sure to see more discrimination lawsuits, and more creative causes of action.

So what can you do now to make sure your company is not exposed to marital status discrimination?

1. Expand dependent health care coverage not only to domestic partners, but also to other extended family members or household occupants.

2. Encourage work arrangements such as flexible work schedules and telework for all employees – not just married employees with families. Avoid “work-family” label for policies and instead use “work-life.”

3. Train your human resources officers and managers that marital status should not be considered in any employment-related decision (e.g. hiring or promotion) or staffing/scheduling decisions. For instance, employers should not make the assumption that a married male employee should be promoted over a single one because he will be more dependable, has a mortgage and mouths to feed (or will soon in the future). Nor should the single employee always get the worst shifts or travel schedules because they don’t have a spouse or family at home.

For information about family-responsibilities discrimination, see this previous post:

EEOC Issues “Employer Best Practices for Workers with Caregiving Responsibilities”

More Caregiver-Discrimination Resources

After our Caregivers in the Workplace seminar, I posted some links for those of you interested in learning more about flexible workplace alternatives.   There also have been some requests for citations to cases discussed in the seminar.  Most of the cases discussed were from the EEOC Guidance, which Adria B. Martinelli strongly urged employers to review.  The examples discussed in the Guidance contain footnotes with reference the case from which facts were drawn.  In addition, Adria also discussed Chadwick v. Wellpoint, No. No. 08-1685 (1st Cir. Mar. 26, 2009) (appealed from D. Maine). 

If you missed the audio conference, you can purchase it on CD at the HR Hero website.

Caregiver Discrimination: The “Sandwiched Generation”

EEOC issued Employer Best Practices for Workers With Caregiving Responsibilities, a technical-assistance guide, last week.  Caregiver or Family-Responsibilities Discrimination, according to the EEOC, occurs when an employer makes an adverse employment decision based on the employee’s care-giving responsibilities.  Because this type of discrimination is a derivative of gender discrimination, the basic premises begins with parents of young children.  But it extends in the opposite direction, as well, to employers whose own parents are the ones in need of caregiving.  This second category is the less commonly recognized of the two forms of discrimination.  But there is a third type, as well.  A  dual-income household where both caregivers are working and care not only for children, but also for aging parents, is known as a “sandwiched” home.  The sandwiched generation are those who are at a very fragile point, having responsibility for multiple generations.Big kid and little kid with PDAs

As many as 9-13% of American households can be characterized as a sandwiched household.  The typical couple includes a 44-year-old man and a 42 year-old-woman, who have been married for just less than 20 years. Both spouses work full time.  There are two children in the home and two aging parents who require assistance in performing daily tasks of living, such as transportation, shopping, making care-related decisions, housekeeping, and managing money.  

Until the economy enjoys a significant improvement, it is easy to imagine that the number of sandwiched households will continue to grow.  Aging parents who, in good financial times, may have been able to afford the expense of assisted living, may see a more reasonable option as living with an adult child.  Of course, as we continue to outlive previous generations, the number of aging parents will continue to grow. 

Employers can play a key role in the lives of employees facing these challenges at home.  Of course, alternative work schedules can be used to attract and retain the best employees of all ages and in all stages of life.  To a group facing extraordinary pressures at home, an alternative work schedule may separate a good employer from a great one. Even aside from these more formal workplace initiatives, though, employers can take important steps to improve the work-family culture in the workplace.  Managers who are sensitive to employees’ personal needs, for example, can be a great source of comfort to an otherwise over-burdened employee.  Guilt is not an emotional area in which they come up short and it’s the last thing they need to feel at work when the pressures of home require them to leave early or to take a longer lunch.

For more on Family Responsibilities Discrimination (FRD), see:

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available

EEOC Issues “Employer Best Practices for Workers with Caregiving Responsibilities”

Employers, the EEOC issued a new technical assistance document yesterday, titled Employer Best Practices for Workers with Caregiving Responsibilities. This document supplements the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, issued in May 2007.eeoc

The Guidance explains the circumstances under which discrimination against workers with  caregiving responsibilities might constitute discrimination based on characteristics protected by federal employment discrimination laws, and suggests best practices that employers may adopt to reduce the chance of EEO violations against caregivers. Best practices are proactive measures that go beyond federal non-discrimination requirements.

The issuance of the Best Practices demonstrates how the new administration is continuing to pay attention to this issue, despite the fact the current economic environment has pushed “family-friendly” policies  to the back burner for many employers. In light of this environment, the EEOC wisely emphasizes in the Best Practices that employers adopting flexible workplace policies may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line. As the Best Practices states:

Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees. The benefits of these programs remain constant regardless of the economic climate, and some employers have implemented workplace flexibility programs as an alternative to workforce reductions. Such programs not only enable employers to “go lean without being mean,” but they also can position organizations to rebound quickly as soon as business improves.

The Best Practices provides specific recommendations for employers, including:

  1. train managers about employers’ legal obligations relating to employees with family responsibilities;
  2. implement an EEO policy that prohibits discrimination against caregivers;
  3. respond to complaints of caregiver discrimination promptly and effectively;
  4. review employment policies and practices;
  5. monitor compensation practices and performance appraisal systems;
  6. where overtime is required, make it family friendly; and
  7. promote an inclusive workplace culture.

Despite the many other pressing issues on President Obama’s agenda, it is clear the new administration is not going let this one fall by the wayside.  Just last month, it was reported that President Obama created a White House Council on Women and Girls. Stay tuned – I don’t think this is the last we are going to see from this administration on these matters.

Previous posts about Family Responsibilities Discrimination: The Maternal Profiling Debate Continues, Looking a Flexible-Schedule Gift Horse in the Mouth, Laid Off & Pregnant.

The Maternal Profiling Debate Continues

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month’s Delaware Today magazineYoung Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation’s adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur–a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave–the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act (“PDA”), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It’s likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

Employee Time Off at the Holidays: Does it pay to be married?

Does your workplace have an unwritten policy benefiting married employees?  John Phillips, at The Word on Employment Law, asks this question and posits some very interesting answers.  In his post, Holiday Pitfalls: Time Off from Work and Marital Status Laws, John points out the common problem of competing requests for time off during the holiday season.  Let’s face it, everyone wants off over Thanksgiving, Christmas, and New Year’s.  And, just because someone doesn’t celebrate a particular holiday don’t mean that they want to sit in the office all day by themselves, as the lone soldier manning the fort.  So who foots the bill when it comes to getting stuck with the holiday shift nobody wants?  John notes:

Single employees may come out holding the short end of the stick when there’s sort of an unwritten policy that married employees, particularly those with children, are given preference on these holiday-related vacation or PTO requests.

He goes on to discuss the application of marital-status as a protected class.  In Delaware, as well 18 other states according to John’s count, marital status is a protected characteristic, just like race, religion, gender, and age.  Another characteristic that has received attention inParents given preferential treatment at work? recent years is caregiver status.  Caregiver, or Family Responsibilities discrimination, occurs when an employee is subject to an adverse employment action as a result of his or her caregiving responsibilities at home. In other words, an employee who has an elderly parent at home or who is raising small children may be the target of discrimination if the employer doesn’t select him or her for a promotion based on the employer’s misgivings about the employee’s “split attentions.”  

Generally, discrimination is not found where an employee is given better treatment because of a protected characteristic–but this is not always the case. 

Is it a common occurrence around the holidays to hear an employee assert that her request for time off should be granted over the request of another employee because she “has little kids at home”?  If so, is that a fair assertion?  On one hand, it seems fair that a mother with small children has plenty of reasons to be home at the holidays.  But, if you are the employee without children, is it fair that you would be expected to carry the burden of “last man standing” in the office? 

As John concludes, this is an issue of workplace relations more than a legal matter.  But, so often, legal problems are largely derivative of a sense of being treated unfairly that it’s unrealistic to separate the two concepts entirely.