The Evolution of 'FReD': Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias

Abstract

This Article integrates a discussion of current family responsibilities discrimination ("FRD") case law with a discussion of the single most important recent development in the field: the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2007 issuance of Enforcement Guidance on caregiver discrimination. The Guidance concretely informs the public about what constitutes unlawful discrimination against caregivers under Title VII and the Americans with Disabilities Act. Specifically, the Guidance crystallizes two key holdings from case law in regard to Title VII disparate treatment claims brought by caregivers: (1) where plaintiffs have evidence of gender stereotyping, they can make out a prima facie case of Title VII sex discrimination even without specific comparator evidence; and (2) settled case law on "unconscious" bias applies to caregivers, too, so that even "unconscious" or "reflexive" bias against caregivers can amount to actionable discrimination. The goal of this Article is to highlight these important developments for legal academics and employment attorneys — both because of the growing importance of FRD itself and because of the potential impact the EEOC’s recent statement of the law in the context of caregiver discrimination may have for race and other types of discrimination cases under Title VII. Given the growing understanding of the role of stereotyping in everyday life, the role of stereotyping evidence pioneered in FRD cases stands to have significant implications for employment discrimination law in general.