In yesterday’s Advisor, we featured attorney Joseph L. Beachboard’s take on association discrimination; today, the third prong, Family Responsibility Discrimination (FRD), plus his tips for reducing liability and an introduction to a unique checklist-based audit system.
What Family Responsibilities Discrimination Is Not …
Family discrimination is not a new protected category, says Beachboard, who is a shareholder in the Los Angeles office of law firm Ogletree Deakins. (His tips came at the SHRM Annual Conference and Exposition held recently in Las Vegas.)
Furthermore, the family responsibilities discrimination concept does not prohibit an employer from treating parents/caregivers the same as childless workers.
Nevertheless, the EEOC does recognize employment discrimination based on stereotypes. The EEOC sees this new form of discrimination as an amalgamation of Title VII, FMLA, and ADA. EEOC’s new family focus has been influenced by the fact that there are more women in the workforce, more families with two parents working, and the acceptance of FRD by the courts and legislatures.
The upshot, says Beachboard, is that the EEOC is looking for a few high profile cases. And it “strongly encourages” employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.
How Can You Identify Family Responsibility Discrimination?
The key factor, says Beachboard, is when a personnel action is taken because of a stereotype based on an employee’s status as a caregiver.
The stereotype essentially says that an employee cannot be both a good caregiver and a good employee; that is, it assumes that “caring for another” must interfere with the employee’s ability to perform.
An Illustrative FRD Case
In Back v. Hastings on Hudson, supervisors allegedly told Back that it was “not possible for [an employee] to be a good mother and have this job.” They questioned whether her commitment would be as strong after she earned tenure, and they asked her about “spacing out her offspring.”
The court allowed the case to move forward, holding that stereotypes about mothers not being committed to or compatible with work were “themselves, gender-based.”
Steps to Reduce the Risk of Association Discrimination Claims
Beachboard recommends that employers:
- Review policies, practices and hiring/assessment criteria
- Consider adopting policies that are family-friendly and that prohibit all forms of association discrimination or retaliation
- Educate and train all managers and employees about this issue
- Train your interviewers that bad questions can lead to bad consequences
- Make employment related decisions based on facts, not stereotypes
Find problems before the feds do. HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees’ attorneys get a chance. Try the program at no cost or risk.
Steps to Reduce Retaliation claims
Everpresent when employees make claims and complaints is the possibility of retaliation. Beachboard recommends the following to reduce the possibility of such claims:
- Document performance issues carefully before taking adverse action
- Create a direct line of communication for the complaining employee to voice concerns (you want to resolve these claims internally
- Monitor, especially if someone might be vulnerable
- Provide feedback to the complaining employee
- Instruct supervisors to:
- Treat the person who complained the same as others
- Not retaliate and not allow others to retaliate (manage the situation)
- Report up any instance of retaliation
- Be aware that the person who complained will be nervous and /or sensitive about retaliation
- Never make negative remarks/jokes about the fact that the person made a complaint
- Consistently apply policies and rules of conduct
Do not ignore performance problems but be aware of retaliation, Beachboard adds.
Discrimination and retaliation—critical concerns, no doubt, but hardly the only ones you’ll have to worry about today. Who knows what your supervisors and managers are up to while you’re not looking. The solution? There’s only one: regular audits.
Audits are the only way to make sure that employees in every corner of your facility are operating within policy guidelines. If you’re not auditing, someone’s probably violating a policy right now.
The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?
BLR’s editors recommend a unique product called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, forcing you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.
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HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.
In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:
- Staffing and training (incorporating Equal Employment Opportunity in recruiting and hiring, including immigration issues)
- HR administration (including communications, handbook content, and recordkeeping)
- Health and safety (including OSHA responsibilities)
- Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave)
- Compensation (payroll and the Fair Labor Standards Act)
- Performance and termination (appraisals, discipline, and termination)
HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists,
FRD may not technically be discrimination in and of itself, but it nearly always involves protected categories of workers. A good test is to always ask yourself whether or not you’d be making the same decision if you were dealing with a man/worker under the age of 40/worker without an ADA-protected disability, etc.