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Hastings Law Journal

Abstract

This Article discusses the rise of the area of employment law known as Family Responsibilities Discrimination (FRD, or "Fred" as it was dubbed in a New York Times article) and the impact recent developments in FRD law stand to make on employment law jurisprudence more generally. FRD is employment discrimination against mothers and other workers based on their responsibilities to care for children, aging parents, ill partners, or other family members. Over the past decade, the number of FRD lawsuits has grown exponentially, attracting the attention of the media, attorneys, and even employers, to become the hot topic in employment law. In this Article, the Authors integrate a discussion of current FRD case law with a discussion of the single most important recent development in the field: the U.S. Equal Employment Opportunity Commission's 2007 issuance of Enforcement Guidance on caregiver discrimination. The Guidance crystallized two key holdings from FRD case law, in regard to Title VII disparate treatment claims brought by caregivers: (I) plaintiffs may no longer need to provide comparator evidence to survive summary judgment when there is evidence of gender stereotyping, and; (2) even "unconscious bias" may result in actionable gender discrimination against caregivers. The Authors highlight these developments for employment attorneys and legal academics, both because of the growing importance of FRD itself and because of the implications the developments may have for other types of discrimination cases under Title VII.

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