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Caregivers Unite

Human Resource Executive, June 16, 2008

A growing number of workers are filing lawsuits, some as class-actions, against organizations they say punish them for attending to family and caregiving responsibilities.

By Stephen Barlas

With his mother suffering from congestive heart problems and severe diabetes and his father succumbing to Alzheimer's disease, Chris Schultz, a 26-year veteran of the maintenance staff at Christ Hospital and Medical Center in Chicago, did what any good son would do.

It was 1999. The hospital had just made him employee of the year, choosing him from among about 5,000 employees. His picture hung in the lobby. He never thought taking intermittent time off from work to care for his parents would jeopardize his job. After all, leave taken in dribs and drabs for personal or family health reasons is his guaranteed right under the Family and Medical Leave Act of 1993.

But Schultz thought wrong. After he began taking the leave, which ultimately stretched into many months, his supervisor set up new monthly work standards employees had to meet in the building-operations department. These "productivity" standards varied from employee to employee.

"They held me responsible for all this work when I wasn't there," said Schultz in 2002, after a federal jury in Chicago awarded him $11.65 million in damages, the largest jury award ever for a case in the ever-growing area of family responsibilities discrimination (FRD). "I tried my best to get the work done. It just took a toll on me. But my parents came first."

Ultimately, rather than go through an inevitable appeal at the U.S. Seventh Circuit Court of Appeals, Schultz and the hospital agreed on a confidential settlement. Cynthia Thomas Calvert, deputy director of the San Francisco-based Center for WorkLife Law, says it's her understanding that the case was settled for less than $11.65 million, "but not a whole lot less. When you have a verdict like that, there are some things an appellate court can do to trim the judgment, but not a lot."

It is the multiple and increasingly sky-high state and federal court judgments that help explain -- along with other factors -- the very significant increase in the number of FRD lawsuits filed in the very recent past, after a long fallow period beginning after the Supreme Court decided the first FRD case in 1971.

According to Calvert, there were nearly 300 verdicts in 2007 alone. They included three multimillion-dollar jury awards: a $3 million judgment against FedEx Corp., a $2.23 million judgment against Bimbo Bakeries USA Inc. and a $2.1 million verdict against Kohl's Department Stores. The FedEx and Bimbo Bakeries cases were filed under Title VII of the 1964 Civil Rights Act and California's Fair Employment and Housing Act, which allows plaintiffs to surpass the $300,000 damage cap on Title VII claims by alleging intentional infliction of emotional distress.

FRD lawsuits come in numerous sizes and flavors. They always jump off from allegations that an employee was disadvantaged in terms of pay, promotion and work because he -- and men are increasingly filing suits -- or she either took time off, legally (under the FMLA) to care for a child or a parent, or was perceived to be less qualified for a promotion track because of the worker's presumed preference for caregiving over career climbing.

These lawsuits are typically filed under Title VII, which outlaws sexual discrimination, and the FMLA. But cases have been filed under other federal laws, such as the Americans with Disabilities Act. In addition, there are numerous state laws that parallel those federal laws, plus additional individual state tort laws that also come into play. Whereas the Schultz $11.25 million jury verdict tops the individual-award category, class-action awards have reached $25 million.

In such a climate, human resource executives would be wise to examine policies and transparencies at their organizations, and study up on this category of discrimination fast taking hold in the employment law landscape.

Back to the Beginning

The Supreme Court opened the door to litigation back in 1971 in Phillips vs. Martin Marietta Corp. In that case, the court ruled that Martin Marietta discriminated against women who were mothers because the company barred mothers of school-aged children from applying for jobs that fathers of school-aged children occupied. But that court decision only rustled the sleeping giant; it didn't wake her.

Congress laid the groundwork for the surge of litigation when it passed the Civil Rights Act of 1991. That gave employees claiming sex discrimination the right to a jury trial, and the right to recover damages for emotional suffering and punitive damages.

"It is likely that both of these changes positively affected employees' decisions to file discrimination suits, including FRD suits," states a 2006 WorkLife Law report. "As one would expect, the number of FRD lawsuits resolved by the courts began to increase soon after the 1991 act."

The FMLA came along in 1993. As the legal launching pad was being spring-loaded by those 1990s laws, the children of baby boomers were entering the workforce starting in the late 1990s with stronger feelings about the need for flexible work schedules to accommodate family responsibilities.

It was this new generation, men and women in their 20s and early 30s, who provided the bodies for the catapult as the new century opened. Cases began to proliferate, and as juries began handing out substantial awards, plaintiffs' attorneys began trolling for cases, especially since discrimination cases appeared to be considerably easier to win than other ones.

Family-discrimination cases were already gaining momentum when Schultz filed his case -- but the $11.25 million verdict in 2002 may have really ignited the trend. It sent out a couple of loud messages, that really big money was available, that men could successfully win FRD suits, and that the baby boomers -- who perhaps had been slow in the 1970s and 1980s to use Title VII to combat workplace discrimination on their own behalf -- could take advantage of the FMLA to help out their elderly parents.

The Supreme Court sent the next loud message in 2006, when it re-entered the fray after first kicking off the FRD movement in 1971. The nation's top court said, in Burlington Northern & Santa Fe Railway Co. vs. White, "[a] schedule change in an employee's work schedule may make little difference to most workers, but may matter enormously to a young mother with school-age children."

The WLL's Calvert says the Burlington Northern case was very important because it built on an Illinois case called Washington vs. Illinois Revenue Service, in which an African-American, female plaintiff had charged that her employer retaliated against her for filing a racial-discrimination lawsuit by eliminating her flexible work schedule, which she needed to attend to her child with Down syndrome.

In the Burlington Northern case, Tennessee rail yard forklift driver Sheila White claimed her 37-day suspension and subsequent reassignment to more administrative tasks was gender discrimination and retaliation for her having lodged a complaint with the company about sexual advances from a supervisor.

In that case, the Supreme Court established a new standard on what actions constitute retaliation under Title VII. The court opinion said retaliation under Title VII is not limited to the actions and harms that are "related to employment or occur at the workplace." Rather, it covers any employer action "that would have been materially adverse to a reasonable employee or job applicant."

The Burlington Northern decision underscored the nuances of the civil-rights laws as they applied to caregivers, and convinced the Equal Employment Opportunity Commission that some of those nuances were smudged and needed a little Windex.

So, in May 2007, the EEOC issued a guidance document called Unlawful Disparate Treatment of Workers with Caregiving Responsibilities .

Camille Olson, a partner of Chicago-based Seyfarth Shaw LLP and a member of its labor and employment law steering committee, says most employers were pretty surprised when they read the EEOC guidance. Olson has represented numerous employers in FRD lawsuits. Companies weren't aware that "caregivers," as a category, were protected under Title VII, Olson says.

"But it is the EEOC's view that there is a sufficient nexus between the issue of caregiving responsibilities and someone's gender to bring it under Title VII," Olson says. "The EEOC really reaffirmed what employers and managers should already know, that you cannot stereotype people, not even in a benevolent way, in terms of what they will or won't want to do in the workplace based on them being a caregiver."

The EEOC guidance -- even though it simply reiterated what all companies should have known for years -- probably proved valuable for some of them. But it may have bounced off the front door of other organizations where stereotyping is still de rigueur among managers. That was the allegation the EEOC tossed at Bloomberg L.P., according to Lisa Sirkin, supervisory trial attorney in the New York District Office of the EEOC.

Sirkin's office filed a class-action lawsuit against Bloomberg in October 2007, alleging that the media company discriminated against female employees who became pregnant and took maternity leave. In its suit, the EEOC asserted that Bloomberg engaged in a pattern of demoting and reducing the pay of female employees after they announced their pregnancies and after they took maternity leave. Some women were replaced by more junior male employees, the EEOC said.

The lawsuit also alleged that the same pregnant women and new mothers were excluded from management meetings and subjected to stereotyping about their abilities to do their jobs because of their family and caregiver responsibilities.

Complaints made by the women to Bloomberg's human resource department were dismissed, according to the EEOC.

"In these kinds of cultures, those kinds of actions are not seen as discrimination, but as acceptable," says Sirkin. Bloomberg declined to agree to a settlement, and the case probably will not go to court for a couple of years, says Sirkin.

She contrasts Bloomberg's allegedly illegal actions with what would be, in individual cases, a perfectly legal approach: discussing with a pregnant woman what her options will be upon her return to her job, the impact those options would have on promotion, pay and other work-related benefits, and then allowing the woman to make the choice that is right for her.

A Bloomberg spokeswoman did not respond to requests for comment.

Complex Issues

The issue of disparate treatment of caregivers, be they male or female, is not always clear. For example, a company's refusal to promote a mother with young children could just as easily be the result of her work history before coming to that company, her performance on the job or her failure to apply for a particular job opening. "That is where the debate is being waged in the courtroom," says Olson.

That is why it is important, she adds, for a company to have transparent leave and promotion policies, ones that are, for example, posted on the company Web site. The way those policies are applied to each individual should be documented. Beyond that, though, employees should understand how they get to an upper promotion track. "A lot of companies are doing a great job identifying high achievers, making sure they have well-rounded portfolios," Olson says.

Training is another important component. "Upper management should literally have conversations with its managers, not about what a particular law requires, but how they should view employees, how you promote employees, looking at the actual protocol," Olson says. Sirkin suggests that companies include a supervisor's handling of caregiving issues in that supervisor's performance review.

In the end, fair, legal, enlightened employee-leave and promotion policies are good business. "It is much cheaper for a company to retain a good worker than to go out and find a new worker and train her," says Calvert. "Also, employee continuity leads to better morale and accrues to the bottom line. There are many reasons to get rid of FRD in the workplace."