Successfully reported this slideshow.
Copyright 2014 Cynthia Thomas Calvert
Investigating Family Responsibilities
Discrimination Claims
Cynthia Thomas Calvert, ...
Cynthia Thomas Calvert is a nationally-recognized lawyer,
speaker, writer, consultant and the president of Workforce
21C. ...
• Grace
• Michael
• Yvonne
• All have family responsibilities
• All had employers who made decisions at least in
part based on their family responsib...
Employment discrimination against mothers and
fathers of young children, pregnant women, and
caregivers for family members...
– Failure to hire
– Hostile work environment
– Increased work requirements
– Denial of or interference with leave
– Failur...
• Over 3600 FRD cases nationally
• Plaintiffs come from all industries, all sizes
of employers, all levels of workers
• 88...
• District of Columbia expressly prohibits FRD in
employment
• Alaska prohibits discrimination based on
parenthood
• Conne...
• More than 80 counties and cities have FRD
ordinances
– “familial status,” “parenthood,” “family
responsibilities”
– Some...
• Title VII and PDA
– State anti-discrimination statutes
• Family and Medical Leave Act
– State leave laws
• Americans wit...
• Litigation costs
• Verdicts, settlements, plaintiff’s attorney’s
fees, defense attorney’s fees
• Business disruption
• D...
• Non-litigation costs
• Distraction, stress, damage to morale, lost
productivity
• Loss of experienced, trained employees...
Workforce/Workplace mismatch
– Ideal worker
– Few workers have another adult at
home taking care of family matters
• 50% o...
Almost everyone will be a caregiver at some
point in his or her life.
• Bias (assumptions) about caregivers, mothers,
fathers, pregnant women, flexible schedule
workers, workers who take leave...
• We notice and remember things that are
consistent with our biases
– Example: a supervisor is more likely to notice
and r...
• Firing mothers for taking leave to
care for sick children
• Giving promotions to women
without children or to fathers
ra...
• Bias against mothers
–Not as competent
–Not as committed
• Firing workers when they announce
their pregnancy
• Demoting pregnant workers
to “an easier job”
• Putting pregnant work...
• Not as competent
• Not as committed
• Not dependable
• Will just quit
• Benevolent stereotyping
• Demoting fathers who take time off to
care for children
• Discouraging paternity leave
• Punishing men who have childcar...
• A little bit involved makes him a
great guy
• A lot involved makes him
– Not committed
– Not ambitious
– Not a team play...
• Terminating workers who take
leave to care for elders
• Harassment once caregiving
obligations become known
• Schedules ...
• Not reliable
• Not available
• Absent too much
• Distracted, less productive
• Will take long leaves
• Women do have babies and do most of the
caregiving
• But can’t assume or take pre-emptive action
– Unfair and inaccurate...
• Caregivers for whom “the stereotypes are true”
may be affected unfairly
– Ex: A mother may be absent to take care of sic...
• Stand-alone policy
• Add to existing policy
• Attendance
• Leave
• Promotion
• Flexible Work Arrangements
• Compensation and benefits
• Performance evaluations
• Training for HR
• Training for Supervisors
• Topics:
– What is FRD?
– Legal bases for liability
– How it arises (demogra...
• Look at demographics
– Women with young children in upper
management
– Length of maternity and paternity leaves
– Promot...
• Flexible work schedules do not prevent FRD
– Do not address caregiver biases
– Can trigger flexibility bias
• Look for triggers
– A caregiver, or about to become one?
– Ask for or take leave?
– Pregnant?
– High medical bills?
– As...
• New Supervisor
• Second Child
• Suddenly negative evaluations
• Recent goal increases
• Uneven application of rules or discipline
• Demotion or transfer
• Employee’s performance
– Look for objective measures not influenced by bias
(quotas, evaluations by third parties unawar...
• Supervisors involved
– Same supervisor who treated employee fairly after employee
became caregiver reduces likelihood of...
• Demographics of department
– Proven pattern of advancing mothers, caregivers who
have taken leave, etc. reduces likeliho...
Complaint: She did not get a promotion she
expected, and her boss told her it was because
she didn’t put in enough time at...
• Failing to investigate promptly and thoroughly
• Failing to get and document all the details
– Ask when, where things ha...
• Instructing employee or witnesses not to talk
with anyone about the complaint
• Forgetting that investigation file may b...
• Purpose: bring issue to an end, create
sound basis for deciding course of action
• Summarize the evidence
– Witness stat...
• Weigh the options
– No action, counseling, discipline, removal
• Communicate resolution to complainant
• Do a fair, documented investigation
• Avoid retaliation
• Educate the supervisor about how to better manage
• Meet with ...
If you have any questions, please feel free
to email them to:
Cynthia Thomas Calvert, President, Workforce 21C
CynthiaCalv...
Webinar: Investigating Family Responsibilities Discrimination Claims with Cynthia Calvert
Webinar: Investigating Family Responsibilities Discrimination Claims with Cynthia Calvert
Webinar: Investigating Family Responsibilities Discrimination Claims with Cynthia Calvert
Upcoming SlideShare
Loading in …5
×

Webinar: Investigating Family Responsibilities Discrimination Claims with Cynthia Calvert

675 views

Published on

In a free i-Sight webinar with Cynthia Calvert, the issue of family responsibilities discrimination was discussed. Calvert shared tips for preventing FRD discrimination and how to investigate allegations of FRD.

To watch the webinar recording, visit: http://i-sight.com/webinar-investigating-family-responsibilities-discrimination-claims/

Published in: Business
  • Be the first to comment

  • Be the first to like this

Webinar: Investigating Family Responsibilities Discrimination Claims with Cynthia Calvert

  1. 1. Copyright 2014 Cynthia Thomas Calvert Investigating Family Responsibilities Discrimination Claims Cynthia Thomas Calvert, President, Workforce 21C
  2. 2. Cynthia Thomas Calvert is a nationally-recognized lawyer, speaker, writer, consultant and the president of Workforce 21C. She helps employers manage today’s evolving workforce, including preventing family responsibilities discrimination and systemic gender discrimination, implementing non-stigmatized flexible work programs, and creating inclusive workplace cultures. Cynthia is also Senior Advisor for Family Responsibilities Discrimination at the Center for WorkLife Law, based at UC Hastings College of the Law.
  3. 3. • Grace • Michael • Yvonne
  4. 4. • All have family responsibilities • All had employers who made decisions at least in part based on their family responsibilities
  5. 5. 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.
  6. 6. – Failure to hire – Hostile work environment – Increased work requirements – Denial of or interference with leave – Failure to promote – Retaliation – Wrongful termination
  7. 7. • Over 3600 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
  8. 8. • District of Columbia expressly prohibits FRD in employment • Alaska prohibits discrimination based on parenthood • Connecticut prohibits information about family responsibilities unless related to BFOQ
  9. 9. • More than 80 counties and cities have FRD ordinances – “familial status,” “parenthood,” “family responsibilities” – Some with private right of action and uncapped damages
  10. 10. • Title VII and PDA – State anti-discrimination statutes • Family and Medical Leave Act – State leave laws • Americans with Disabilities Act – State pregnancy accommodation laws • Common law (wrongful discharge, contract, fraud, infliction of emotional distress, promissory estoppel)
  11. 11. • Litigation costs • Verdicts, settlements, plaintiff’s attorney’s fees, defense attorney’s fees • Business disruption • Damage to reputation
  12. 12. • Non-litigation costs • Distraction, stress, damage to morale, lost productivity • Loss of experienced, trained employees with client relationships • Damage to recruiting
  13. 13. Workforce/Workplace mismatch – Ideal worker – Few workers have another adult at home taking care of family matters • 50% of the workforce is female • 83% of workers are in families where all adults are in the paid workforce
  14. 14. Almost everyone will be a caregiver at some point in his or her life.
  15. 15. • 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
  16. 16. • 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 • “Choice and discrimination are not mutually exclusive.” --Joan Williams
  17. 17. • 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 • What is going on here?
  18. 18. • Bias against mothers –Not as competent –Not as committed
  19. 19. • 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
  20. 20. • Not as competent • Not as committed • Not dependable • Will just quit • Benevolent stereotyping
  21. 21. • 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
  22. 22. • A little bit involved makes him a great guy • A lot involved makes him – Not committed – Not ambitious – Not a team player – Not dependable
  23. 23. • 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
  24. 24. • Not reliable • Not available • Absent too much • Distracted, less productive • Will take long leaves
  25. 25. • Women do have babies and do most of the caregiving • But can’t assume or take pre-emptive action – Unfair and inaccurate linkage of status/ demographics and negative assumptions • Ex: Just because she is a new mother doesn’t mean she can’t maintain client relationships • Ex: Just because he asked for flexible work does not mean he will be less reliable
  26. 26. • 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.
  27. 27. • Stand-alone policy • Add to existing policy
  28. 28. • Attendance • Leave • Promotion • Flexible Work Arrangements • Compensation and benefits • Performance evaluations
  29. 29. • Training for HR • Training for Supervisors • Topics: – 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
  30. 30. • Look at demographics – Women with young children in upper management – Length of maternity and paternity leaves – Promotion and compensation after family leave or flexible work schedule – Terminations and lay offs
  31. 31. • Flexible work schedules do not prevent FRD – Do not address caregiver biases – Can trigger flexibility bias
  32. 32. • Look for triggers – A caregiver, or about to become one? – Ask for or take leave? – Pregnant? – High medical bills? – Asked to work flexibly?
  33. 33. • New Supervisor • Second Child
  34. 34. • Suddenly negative evaluations • Recent goal increases • Uneven application of rules or discipline • Demotion or transfer
  35. 35. • Employee’s performance – Look for objective measures not influenced by bias (quotas, evaluations by third parties unaware of caregiver status) – Look at performance over time • How others have been treated – Look for consistent application of rules, discipline – Look for how other caregivers have been treated by same supervisors
  36. 36. • Supervisors involved – Same supervisor who treated employee fairly after employee became caregiver reduces likelihood of liability • Comments made – Make record of specific allegation – Look for witnesses • Timeline of performance and caregiver status – Lengthy time as caregiver reduces likelihood of liability
  37. 37. • Demographics of department – Proven pattern of advancing mothers, caregivers who have taken leave, etc. reduces likelihood of liability • Employee’s notice of employer policies – Showing that employee knew of attendance policy, FMLA leave procedures, call-in requirements, etc. can reduce liability
  38. 38. Complaint: She did not get a promotion she expected, and her boss told her it was because she didn’t put in enough time at the office because she is a mother.
  39. 39. • Failing to investigate promptly and thoroughly • Failing to get and document all the details – Ask when, where things happened, who saw it – Ask who else was treated differently – Ask how often harassing conduct occurred, when – Ask how the complainant reacted or was affected – Does he/she know of other witnesses or documents? – How does the witness know?
  40. 40. • Instructing employee or witnesses not to talk with anyone about the complaint • Forgetting that investigation file may be evidence in court • Failing to check your own biases
  41. 41. • Purpose: bring issue to an end, create sound basis for deciding course of action • Summarize the evidence – Witness statements, credibility – Documents, source • Know the elements of the legal claims at issue – For each element, assess the evidence
  42. 42. • Weigh the options – No action, counseling, discipline, removal • Communicate resolution to complainant
  43. 43. • Do a fair, documented investigation • Avoid retaliation • Educate the supervisor about how to better manage • Meet with your company’s lawyer • Offer reinstatement • Do not oppose unemployment • Accurately assess the value of the claim • Settle claims with employees
  44. 44. 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, i-Sight j.gerard@i-sight.com

×