A recent study conducted by the Center for WorkLife Law at the University of California Hastings College of the Law provides eye-opening statistics of which employers in all industries should be aware. The study, “Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016,” details dramatic increases in litigation relating to employees who have caregiving responsibilities for whom reasonable accommodations have not been provided by their employers. These statistics include the following:
• Family responsibilities discrimination (“FRD”) litigation has risen 269% over the last decade, in contrast with employment discrimination cases filed in federal courts, which actually decreased by 13% in the same time frame
• Employees win 67% of the FRD cases that go to trial, a much higher rate than other employment cases
• Employees in FRD cases received $477,009,417 in verdicts and settlements over the last decade, more than double the amount of the previous decade
• FRD cases have been filed in every state, these claims are found within every industry and at every level within companies of all sizes
• Pregnancy accommodation cases are the most common type of FRD claims, accounting for 67% of the total number of claims filed, but elder care is an expanding frontier: the total number of elder care cases has already increased by 650% and this number is expected to grow as the population continues to age
Litigation involving FRD cases is not only costly; it also causes companies to lose valued employees, decreases morale and productivity, weakens relationships with customers and tarnishes reputations. To avoid the damage caused by FRD lawsuits, the study recommends the following:
• Supervisor training, as interactions between supervisors and caregiver employees are a key source of FRD claims
• Adopting personnel policies aimed at anti-discrimination in the context of family caregiving responsibilities, or adding family caregiving responsibilities as a protected category to an existing anti-discrimination policy
• Active oversight by human resource professionals of employment decisions relating to caregiving employees
• Adopting a complaint procedure directed to FRD claims and issues
• Adopting a work coverage program designed to address situations where an employee is absent because of family caregiving responsibilities
Employers in Illinois should be particularly mindful of potential FRD claims, as Illinois is one of a growing number of states that has an actual pregnancy accommodation law. According to 735 ILCS 5/2-102 (J)(1) – (4), it is a civil rights violation for an employer not to make reasonable accommodations for an employee related to pregnancy or childbirth, or for the employer to deny employment opportunities based on the requirement that the employer make reasonable accommodations to an employee related to pregnancy or childbirth.
The takeaway from the dramatic increase in FRD cases is that employers have not adapted to the reality that the number of employees who have caregiving responsibilities has increased. With this knowledge, employers should seek to pinpoint the root causes of FRD claims within their companies and implement safeguards and policies designed to fend off FRD activities by their employees, particularly those with supervisory powers. Implementing such safeguards will not only avoid costly FRD lawsuits, but will also preserve the reputation and image of the company to its employees, customers and the industry within which it operates.