This quiz was created by The Center for WorkLife Law. It will help you identify family responsibilities discrimination (FRD) issues, and learn more about how employers can prevent FRD. Best of all, this quiz won’t be graded, so it should be painless and instructive.

Questions:

The Number of FRD Cases

Over the past ten years, the number of FRD cases filed by employees has:

a. Remained about the same.

b. Decreased by 50%.

c. Doubled.

d. Increased almost 400%.

The answer is D. According to the WLL 2010 Litigation Update Report, the number of family responsibilities discrimination (FRD) cases filed by employees increased by nearly 400% from 2000-2010. During that time, the number of FRD cases decided by courts increased by nearly 300%. (See WorkLife Employer Alert, February 2010, for more discussion of the 2010 litigation update report.)

Caregivers

The following employees are considered “caregivers” under family responsibilities discrimination law:

a. Mothers and fathers.

b. Grandparents.

c. Children of elderly parents.

d. All of the above.

The answer is D. FRD occurs when an employee suffers discrimination at work based on unexamined biases about how employees with family care-giving responsibilities will or should act. Any employee who takes care of family members is a caregiver for FRD purposes. (See the EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.)

No Federal Statute

Since there is no federal statute prohibiting family responsibilities discrimination, the following is true:

a. Employers in states that do not have state laws prohibiting FRD can ignore the issue.

b. All employers can ignore the issue because federal law would pre-empt state law on FRD, and there is no federal law prohibiting FRD.

c. All employers need to educate themselves on FRD because liability for discrimination against caregivers can arise in any state under a variety of statutory and common law theories.

The answer is C. All employers need to educate themselves about FRD, and how to prevent it. Although there is no federal statute expressly protecting workers from adverse employment actions based on their family caregiving responsibilities, a rapidly growing body of case law has found protections under at least 15 separate legal theories, including, among others: Title VII, FMLA, Americans with Disabilities Act, ERISA and state and local laws. (See Caregivers as a Protected Class?: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination, by Stephanie Bornstein and Robert J. Rathmell, December 2009).

Accommodating Parents

Mrs. Westerby is a stock clerk with excellent reviews at Smiley’s Shoppe, which is open from 10 am to 7 pm M – F. All stock clerks work 9 am to 5 pm. Mrs. Westerby cannot drop her kids off at school until 9:30 am, so she proposes that she work 10 am to 6 pm each day. This would be a first for Smiley’s Shoppe. Smiley’s Shoppe should:

a. Deny Mrs. Westerby’s request because there is no law requiring it to agree to change its hours to accommodate employee childcare needs.

b. Agree to Mrs. Westerby’s request because she is a mother, and mothers should receive special treatment.

c. Deny Mrs. Westerby’s request because granting it is a bad precedent, and other stock clerks may demand individual schedules.

d. Consider Mrs. Westerby’s request, and whether it will interfere with Smiley’s Shoppe’s business. Even though the change may not be required by law, if the change does not affect Smiley’s Shoppe’s business, it would be helpful to grant it to retain a good employee like Mrs. Westerby.

The answer is D. The law does not require employers to accommodate employee child care needs in most cases. However, the company should determine whether the denial of Mrs. Westerby’s schedule change is discriminatory or retaliatory, and whether such a change would negatively affect Smiley Shoppe’s business. Although Smiley Shoppe may not be legally required to make the schedule change, it may want to agree to the change to retain a good employee. See Corporate Voices Study Links Workplace Flexibility for Hourly Workers/Attainment of Business Financial Goals and Core Objectives, by Corporate Voices for Working Families (Washington 2009.)

FMLA Leave

Mr. Philby is a marketing manager at Axel Co. He reports to Mr. McLean. Mr. Philby requests an FMLA leave to care for their newborn. Mr. McLean should:

a. Check on Mr. Philby’s eligibility for FMLA leave, and provide him with the proper forms if he is eligible.

b. Deny Mr. Philby’s request because his wife is at home, and the FMLA only allows one caregiver to take FMLA leave at a time.

c. Ask Mr. Philby if there is any family in the area who can pitch in, since men should be the breadwinners — not the babysitters — in a family.

d. Tell Mr. Philby that he feels bad for his family situation, but that he needs Mr. Philby to work full-time. Mr. McLean offers to help out by pulling strings at recommended day care center for Mr. Philby’s baby.

The answer is A. If Axel Co. is covered by the FMLA, and Mr. Philby is eligible for FMLA leave (or leave under a similar state law), Axel Co. must provide Mr. McLean with the appropriate forms, including a notice of benefits and medical certification for his wife’s health care provider to complete. Mr. McLean must not let his own stereotypes about male and female roles affect his treatment of caregivers of either gender. (See WLL Employer Alert, July 2010, for more information on certain FMLA requirements.)

Damages

In a case for gender discrimination, including claims of family responsibilities discrimination, a plaintiff can recover the following types of damages:

a. Back pay.

b. Future wages (Front pay).

c. Attorneys’ fees

d. Punitive damages.

e. All of the above.

The answer is E. In a case for gender discrimination, including a claim of family responsibilities discrimination, a plaintiff (or plaintiffs in a class action) can recover all of these types of damages and fees. In a 2010 case, Velez v. Novartis, a federal jury in New York ordered Novartis Pharmaceutical, Inc. to pay over $250 million in damages, including punitive damages, to current and former female Novartis employees who brought claims of gender discrimination, including FRD. (See WLL Employer Alert, June 2010, for more discussion of the Novartis case).

Disabilities

Mrs. Magnus, a well-reviewed employee of Pym Co., goes home every day for lunch to help her disabled husband. Mrs. Magnus’ supervisor makes a new rule that bars all Pym Co. employees from leaving the workplace during the lunch break. Mrs. Magnus complains to Pym Co. that this rule discriminates against caregivers. How should Pym Co. respond?

a. There is no need For Pym Co. to respond. Companies have the right to make workplace rules that apply to all employees.

b. HR should find out whether there is a legitimate business reason for adopting the new rule, or whether the rule was adopted to discriminate against Mrs. Magnus because she has a disabled husband.

c. Do nothing. Mrs. Magnus’ husband is disabled, but the Americans with Disabilities Act does not protect Mrs. Magnus because she is not disabled.

The answer is B. Pym Co. has the right to make reasonable workplace rules. The lunch break rule applies to all employees, so it appears not to discriminate against caregivers per se. Nonetheless, HR should investigate further because the adoption of the rule may violate anti-discrimination laws. For example, the Americans with Disabilities Act (ADA) protects employees from “Association Discrimination” — discrimination based on the employee’s relationship to an individual with a disability.

HR also should discuss this new rule with Mrs. Magnus’ supervisor to determine if there is a legitimate business reason for the rule. It is possible that the supervisor adopted the rule to retaliate against Mrs. Magnus, or does not want Mrs. Magnus working at Pym Co. because he believes she will take more time off due to her disabled husband. (See Employer Alert, August 2010, for more discussion of Association Discrimination under the ADA.)

Family Status Discussion in Job Interviews

During a job interview with HR at Burgess Co., Mr. Blunt volunteers that his wife is pregnant with triplets. The HR Manager should:

a. Ask Mr. Blunt about his plans to take time off when the babies arrive. It is legal to ask because Mr. Blunt volunteered the information about the triplets.

b. Not ask Mr. Blunt any questions about his family plans, and assess his suitability for the job based only on Mr. Blunt’s qualifications.

c. Decline to hire Mr. Blunt because the poor guy will have his hands full, and will not be able to do a good job at Burgess Co.

d. Hire Mr. Blunt if he is qualified, but give him extra work so that he knows how hard it will be to keep this job when he has more responsibilities at home.

The answer is B. Mr. Blunt’s family status or plans should have no bearing on Burgess Co.’s decision whether to hire him. An employer should not ask questions about family responsibilities, even if the questions are well meaning, during interviews. This is true even if the employee raises the topic, as Mr. Blunt did in his interview. Mr. Burgess should only be concerned with Mr. Blunt’s ability to perform the job, and not with how he will arrange his family situation to allow him to get to work. (See WLL Employer Alert, October 2010, for more discussion of interviewing practices.)

© 2002-2010 The Center for WorkLife Law

Previously, we discussed the decision of the Supreme Court in Thompson vs. North American Stainless , which unanimously upheld a retaliation claim by the fiancé of an employee who had filed a discrimination charge. This week, we further analyze the ruling and its significance.

The Supreme Court’s Decision: Today’s Court Less Pro-Business Than Some Claim?

Hans Bader of The Examiner headlined his take on Thompson : “The Supreme Court once again shows it is NOT pro-business.”

This is part of a long line of rulings against employers by the Supreme Court, which is not pro-business at all, contrary to the false claims of many liberal reporters who cover the Supreme Court. Many of these rulings against employers, like Lewis v. Chicago (2010), have been unanimous reversals of lower court decisions.

Of course, it’s not a simple matter of pro-or anti-business; the Court applies the law, not its political inclinations (though the latter may play some role). In employment cases, it must rule in a manner supported by both the statutory text and a rather large body of Supreme Court law developed during the four-plus decades since enactment of the 1964 Civil Rights Act.

Thompson Follows Burlington Holding

Thompson is a logical outgrowth of the decision in Burlington Northern vs. White , which was also a “pro-employee,” not pro-big business, ruling.

In Burlington, the Supreme Court unanimously found that a retaliation claim could be based not only on so-called “ultimate employment decisions,” but also on lesser employer actions that are materially adverse — those that might “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In Burlington, the Court upheld a claim alleging that a reassignment to different duties and a suspension without pay constituted unlawful retaliation.

The Burlington case expanded the potential for cases such as Thompson to be heard — by allowing third-party retaliation claimants to argue that the action taken against them is the type of thing that might have dissuaded their friend or relative from complaining of discrimination. Indeed, the Court bought this reasoning, being compelled to follow Burlington and finding the Thompson holding inevitable under the Burlington standard.

The Increased Popularity of Retaliation Charges

The EEOC reported that 99,922 discrimination charges were filed in 2010, compared with 93,277 in 2009, 95,402 in 2008 and 82,792 in 2007.

Last year, for the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased. Historically, race had been the most frequently filed charge since the EEOC became operational in 1965.

Retaliation has always been a fairly common charge, often made in conjunction with allegations of another type of discrimination, such as race or gender. (The form for filing charges with the EEOC has boxes to check which type(s) of discrimination are alleged, including retaliation, and multiple boxes can be checked.)

Thompson may further increase the volume of retaliation charges. As Burlington expanded the range of conduct that may support such a charge, Thompson expanded the class of persons who may file such a charge. Between the two cases, the Court has significantly expanded the volume of potential retaliation charges.

True Charges of Retaliation or Merely Unpleasant Termination of Employment Followed by Actual or Feared Long-Term Unemployment?

In a New York Times article earlier this month, “More Workers Complain of Bias on the Job, a Trend Linked to Widespread Layoffs,” Michael J. Zimmer, an employment law professor at Loyola University in Chicago, said, “The uptick in EEOC complaints is directly correlated to the downtick in employment.”

Employment lawyer Michael S. Burkhardt, of Philadelphia’s Morgan, Lewis & Bockius, said that the majority of charges being raised to the EEOC are merely results of the upset of the affected party in being terminated. He also said that some charges are filed with the EEOC if the party suspects they will soon be laid off in order to make their termination more difficult, as the original charge while still employed can become the basis for an additional retaliation charge upon termination.

How Slippery is the Slope?

North American Stainless, the employer in the Thompson case, argued before the Court that upholding the claim in Thompson would have a “slippery-slope” effect — that it would open the door wide for retaliation claims based on all manner of relationships to an employee who exercises rights under the discrimination laws.

It may have been a poor strategy to rely heavily on the slippery slope argument. Such reasoning is so weak it has often been described as a logical fallacy.

The best response to the slippery slope argument is to refuse to take the bait and instead say that while the extreme at the bottom of the slope is indeed obviously unacceptable, somewhere in the middle, part way down the slope, there is a line. Essentially, a court can say, “The line may be fuzzy, but we’ll know when we’re crossing it – and we’re nowhere close in this case.”

Not surprisingly, that’s pretty much what the Court said in Thompson. The Court was cautious about not wanting to expand the right to file third party retaliation claims to more casual relations. Beyond family members – or near family members such as a fiancé or domestic partner – there appear to be a relatively few situations in which a third-party retaliation charge could succeed. A court would probably not rule in favor of mere acquaintance-like work friends.

Thompson is an Example of “ Hard Cases Make Bad Laws“

The claim in Thomson was undeniably unusual. It was unusually sympathetic (what a prelude to a wedding!). It was also factually unusual, as it is not often that: (a) both members of an engaged couple work for the same employer and (b) one of them gets fired shortly after the other complains of discrimination.

All too often, appellate court decisions remind one of the old maxim, “Hard cases make bad law,” meaning “exceptional legal cases aren’t suitable as the source of generalized laws.” There may be an important legal issue at stake in “hard cases,” such as Thompson, but the facts are exceptional, and the decision is likely to have a negative impact on much less exceptional cases. Even if courts stop well short of the bottom of the “slippery slope,” litigation of less exceptional cases testing that limit will be encouraged by a “hard case.”

What is the lawyer’s obligation in such a case? Obviously the lawyer’s obligation is to the client’s representation, not the law’s development. Yet the client will also be affected if the outcome is “bad law.” So, particularly in deciding whether to attempt to have a case heard by the Supreme Court (or, as in this case, reheard en banc at the Circuit level), a valid consideration a good attorney should raise is whether this is the best possible case to make into a test case. Perhaps North American could have or should have settled after losing the Circuit panel decision or even while the plaintiff was pursuing a grant of certiorari by the Supreme Court (almost always a long shot) — especially if it had some decent facts on why it fired the fiancé.

Advice on Preventing Third-Party Retaliation Claims

There is concern about an employer’s ability to make a termination decision when the employee’s relationship to others who complained of discrimination must be taken into account.

David Murphy of Morrison & Foerster’s Palo Alto law office said, “As a result of this decision, employers when taking more serious disciplinary or other significant employment actions need to be aware of whether the employee involved is related to or involved with a prior discrimination claimant in anything more than a ‘mere acquaintance’ status.”

This would be true if the best practice in employment decision-making was to first assess whether an employee had any protected characteristic (both visible, such as race or age, or invisible, such as having exercised rights under workers’ compensation, discrimination, or other laws) and then take special care with those who have such a characteristic, while relaxing scrutiny and allowing supervisors freer reign and discretion with the prototypical unprotected employees — white males under 40 with no disabilities who never complained about anything or exercised any protected legal rights.

This is not the best practice. Though employment lawyers always like to know about protected characteristics when advising on an employment decision, our advice should not be dependent on that fact. The best practice to follow is to treat everyone the same under similar circumstances, and to document decisions well in case it is necessary to defend them to the EEOC or in court, protected characteristic or not. That is what compliance with equal employment opportunity law requires. A decision can’t be based on whether a person is a certain protected age, race or sex, or has engaged in activities protected against retaliation – or is in a relationship with someone who has — but on whether it is a good decision.

Prior to terminating an employee, rather than investigating whether they have family or friends who have made discrimination complaints and thus might provide a basis for a third-party retaliation claim, an amployer might be better off having defenses of ignorance and fair treatment. If North American’s decision-makers who fired the plaintiff in Thompson hadn’t even known about the relationship with the fiancé or about the fiancé’s discrimination charge, such ignorance would have been a powerful defense!

Closing Thoughts on Defending Third-Party Retaliation Claims

Brian Van Vleck, in an article called “Retaliation by Association is Illegal—Thompson vs. North American Stainless, L.P.” in the California Workforce Blog, brings up a good point about the possibility of termination in relation to retaliation discrimination.

But this alleged scenario — terminating employee A for the sole purpose of hurting employee B — is probably not very common in the real world. A more likely scenario is that once a whistleblower is terminated, his supporters or protégées may find themselves on the chopping block because they are now perceived as part of a disfavored or disloyal faction which has just lost its patron.

So Van Vleck is suggesting a subtle distinction: that between a third-party termination that truly has a retaliatory motive of punishing the originally complaining employee and one that has a motive of punishing the third party in a form of guilt by association. That might be a tough distinction to get across on summary judgment or before a jury – which is not to say one shouldn’t attempt it in an appropriate case.

Another good approach to defense of a Thompson-type third-party retaliation claim would be to focus on applying the Burlington test to the relationship between the parties involved. One would ask, for example, how many employees who truly felt aggrieved by discrimination would be dissuaded from filing a charge by the thought that a beer-drinking buddy, sometime dating companion, or frequent lunch-mate might get fired – and how likely it would be that the employer took such an action with a retaliatory motive.

Ruling in Thompson Fiancé Retaliation Case

Court Uphold’s Fiancé’s Retaliation Complaint

In Thompson vs. North American Stainless, the Supreme Court addressed whether a friend or relative of an employee who made a complaint of discrimination may pursue a claim that they suffered retaliation because of that complaint — despite not having been the one who made it.

In a brief opinion penned by Justice Scalia, the Court unanimously held that such claims may be brought under some circumstances, including those before the Court in Thompson, in which the person alleging retaliation was the original discrimination complainant’s fiancé.

The Court expressly “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful,” leaving this to case-by-case determination. The Court did, however, provide some useful guidance to lower courts confronting this issue:

We expect that firing a close family member will almost al­ways [be actionable], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

Third-Party Retaliation Issue Raised By Simple Story of Employee and Her Fiancé

The story leading to the retaliation charge dates back to February 2003, when Miriam Regalado filed a gender discrimination charge against North American Stainless, her employer at the time, after being fired.

Three weeks later, Regalado’s fiancé, Eric Thompson, was also terminated. Thompson then filed his own discrimination charge, claiming his termination was in retaliation for Regalado’s discrimination charge.

This charge led to a lawsuit that made its way to the Supreme Court after a 2006 summary judgment for the employer, a Sixth Circuit reversal, and then a 2009 en banc rehearing in which the Sixth Circuit affirmed the original summary judgment, reasoning that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.”

This simple statement of facts at the Supreme Court level may leave some readers wondering why it took from 2003 to 2011 to obtain a final ruling from the Supreme Court. Part of the explanation is that each step along the way takes time, while issues are briefed and, at some stages, orally argued.

But part is that cases that appear factually simple by the time they reach the Supreme Court look that way because the issues have been narrowed throughout the process, including in the Court’s opinion-writing work. It is a safe bet that at earlier stages there was a major factual dispute as to why Thompson was let go, involving depositions of witnesses and document review; and legal arguments about whether the facts surrounding his termination supported an inference of retaliatory motive.

The Court’s opinion, though final as to the legal issue, merely paves the way for the parties to continue to litigate those issues, as the Court “remanded for further proceedings consistent with this opinion.”

Supreme Court Addressed Two Distinct, But Related Legal Issues in the Thompson Decision

The Court stated the issues this way:

1. Did NAS’s firing of Thompson constitute unlawful retaliation?
2. If it did, does Title VII grant Thompson a cause of action?

It might seem obvious as a matter of common sense that if the answer to the first question is that the firing was unlawful, of course Thompson could sue. But who ever said common sense applied to the law?

Not everyone can sue just because unlawful conduct has occurred. For example, an unlawfully terminated employee’s landlord can’t sue because the firing led to the fired employee’s inability to pay rent. Much difficult law has been developed concerning who can sue, often described as “standing to sue.”

In this instance, common sense was quite obviously right: Thompson, after all, was the injured person, not someone remotely affected, so if retaliating against him is unlawful he can sue for it. But whoever said lawyers don’t raise obviously losing arguments — and even take them all the way to the High Court?

Here, the Court actually found that the standing issue was “[t]he more difficult question.”

The Supreme Court’s Ruling On the Fiancé’s Retaliation Claim

The Court’s ruling on the first question, whether Thompson’s firing could be unlawful retaliation, was guided by the Court’s 2006 ruling in Burlington N. & S. F. R. Co. v. White. In Burlington, the Court held:

[T]he anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. … [T]he provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. … [T]he employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Showing remarkable common sense, undoubtedly cutting through plenty of legal obfuscation in the briefs and arguments, the Court said:

We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity [such a filing a charge] if she knew that her fiancé would be fired.

NAS made a classic “slippery slope” argument, contending that:

Prohibiting reprisals against third parties will lead to difficult line-drawing problems concerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argue[d], will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

The Court wisely declined to take the bait, stating:

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. [W]e adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. … [T]here is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

As noted above, the only additional guidance the Court provided was to state the polar extremes that a close family member would normally have a retaliation claim if terminated, while a a mere acquaintance suffering a milder reprisal would not.

The Court’s Ruling on the Fiancé’s Standing to Sue

On this issue, the Court had to apply different statutory language, that providing a remedy to a “person claiming to be aggrieved” by a violation. Again, one would think Thompson obviously fit the bill, and the Court agreed, but only after wading through a somewhat dense argument about whether this definition is coextensive with Article III jurisdiction. The Court held it was not:

If any person injured in the Article III sense by a Title VII violation could sue, absurd consequences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence.

Instead, the Court adopted a “zone of interests” test used in other contexts, which provides standing to sue to anyone who “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”

Applying this standard, the Court easily found Thompson had a right to sue because he:

was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation — collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her.

In part II of our coverage of the Thompson case, we’ll look at some commentary from new and old media, and some practical implications of the case.