Articles Posted in Family Responsibilities (FRD)

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.

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:

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.

Thanks to everyone who attended the audio conference on Caregiver Discrimination, presented by Adria B. Martinelli and Margaret M. DiBianca.  As promised during the conference, we’re posting some of the many resources that are available online where employers can locate specific information and research to use in pitching the idea of Flexible Workplace Arrangements.


Two of the Leading Work-Life Centers

Workplace Flexibility 2010, at the Georgetown University Law Center, has a virtual tremendous amount of helpful resources,including A Fact Sheet on Flexible Work Arrangements and Flexible Work Arrangements: The Overview Memo.

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, 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:

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.

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.”  

October is National Work and Family month. The Alliance for Work-Life Progress (AWLP) , sponsored the work-life-balance initiative, which was passed by Congress in 2003. National Work and Family month recognizes the importance of employer-sponsored work-life programs in attracting, motivating and retaining top talent.

work_life_balance_sign Though employers may scoff at such perceived “perks” in the current economic environment, organizations that incorporate work-life programs report that such programs help to create more effective workplaces. Flexible work arrangements provide enhanced employee performance and show that employers care about the well-being of their workforce.

With an increase in single-parent households and homes where both parents are wage earners, businesses must proactively incorporate work-life initiatives into their business models.  The Families & Work Institute released a study last Spring, the 2008 National Study of Employers, which showed that employers are rapidly adjusting to the demands of the family-oriented employee. Proponents of work-life programs say that such initiatives reduce turnover, absenteeism, and stress-related illnesses, as well as contribute to increased productivity.

Federal Employees Paid Parental Leave Act (H.R. 5781) Passes the House

The FMLA mandates that employers of a certain size give parents 12 weeks’ leave, and allow them to return to the same or substantially similar position. But with the exception of a few states who have enacted states requiring that some amount of this leave be paid, employers have no obligation to pay for any parental leave.

That may soon change for the nation’s largest employer. On June 19, 2008, the House passed the Federal Employees Paid Parental Leave Act (H.R. 5781) by a 278-146 vote. H.R. 5781 provides federal employees with four weeks of paid parental leave after the birth or adoption of a child. A bipartisan companion bill has been introduced in the Senate. Stay tuned until after the November elections to see what kind of momentum this one builds!

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