Increasing attention has been paid to the work-family conflicts facing employees. No federal statute specifically prohibits discrimination against employees with non-medical care-giving obligations. There is a growing trend to try to develop theories under existing anti-discrimination laws to prohibit what has been termed Family Responsibilities Discrimination (FRD). In this Emerging Issues Analysis, Darryl VanDeusen and Kelly Hoelzer explore this developing area of law. They write:
Legal Theories of Family Responsibilities Discrimination
There is no statutory prohibition on discrimination on the basis of one's family responsibilities. Creative plaintiffs continue to pursue FRD cases under a variety of legal theories. The most common of these theories is sex discrimination in violation of Title VII. Though the legal theories supporting FRD claims are evolving, courts have considered the issue more frequently in terms of sexual stereotyping as a form of sex or "sex-plus" discrimination in violation of Title VII.
Sex-Plus Discrimination Under Title VII
Title VII prohibits discrimination in employment on the basis of several protected characteristics, including race, color, religion, gender, or national origin. While Title VII does not specifically protect employees' childcare or parenting decisions, the federal courts have recognized a theory of liability under the statute known as "gender-plus" or "sex-plus" discrimination. The Supreme Court first recognized sex-plus discrimination in Phillips v. Martin Marietta Corp. [400 U.S. 542 (U.S. 1971)], holding that Title VII does not allow an employer to have one hiring policy for women with pre-school-age children and another for men with pre-school-age children.
After Phillips, the federal courts have determined that sex-plus discrimination occurs when an employee is "subjected to disparate treatment based not only on her sex, but on her sex considered in conjunction with a second characteristic," such as her parental status. Sex-plus discrimination, however, is ultimately based on the plaintiff's sex. Thus, to recover under a sex-plus theory, the aggrieved employee must still prove the employer's purposeful disparate treatment because of her gender.
How does an employee prove that she was treated badly because of her gender, rather than because of some unprotected status? The federal courts have taken differing views on the type of evidence required. Several courts have held that to establish a sex-plus claim, the plaintiff must show that she was treated less favorably than similarly situated male comparators with the same "plus" characteristic. For example, a woman claiming she was harassed and constructively discharged because she was a mother of young children failed to establish liability where she could not identify any fathers of young children who were treated differently. In another case, a married mother of five children, denied a promotion, was able to establish a prima facie case of sex plus marital and family status discrimination after identifying a married male candidate with children who got the job over her. Another female employee, who alleged discriminatory treatment based on her employer's failure to provide an adequate location for her to pump breast milk, could not establish a prima facie case of discrimination as a breastfeeding woman because no comparable class of similarly situated male employees existed.
Still other federal courts have held that plaintiffs need not identify male comparators in a sex-plus case, but instead may show that they were treated less favorably than any person (male or female) who lacks the "plus" characteristic.
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Practical Pointers for the Practitioner
What issues should the practitioner faced with a possible FRD claim expect to see? The first hurdle to overcome from the plaintiff's perspective is the lack of any federal statute specifically prohibiting discrimination because of parental or family status. As indicated above, however, a plaintiff caregiver may present facts that suggest unlawful discrimination in violation of Title VII, the ADA, or the FMLA. With the EEOC's Enforcement Guidance now in place for two years, investigators are scrutinizing charges of disparate treatment brought by caregivers more closely.
A plaintiff pursuing a sex-plus discrimination lawsuit may have difficulties in proving her claim, depending on the court. In a sex-plus case, the plaintiff must ultimately prove that she suffered some adverse action as a result of her sex. In certain jurisdictions, such as the Sixth and Tenth Circuits, a woman claiming sex-plus discrimination because she is a working mother should be prepared to provide a similarly situated working father who was treated more favorably. Otherwise, she will have a hard time making her prima facie case that she ultimately was denied a promotion, terminated, or otherwise treated badly because she is a woman, rather than a mother.
A more effective approach may be to produce evidence that an employer's conduct was motivated by stereotypical beliefs about such things as a working mother's lack of commitment to her job, a father's need to stay at home with children, etc. The plaintiff in Back [v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004)] successfully established a sex discrimination claim, even though the Second Circuit noted that her claim would be stronger with evidence of a similarly situated male, because her evidence of her supervisors' repeated comments about her need to be home with her children and inability to work long hours put those supervisors' motivation in question. Even a supervisor's relatively innocent assumption that a working mother would not consider a transfer to another office, even where it meant a promotion, because she would not want to disrupt her family may be sufficient to make out a sex-plus or sex discrimination claim.
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