Important points from Karol Rose, Chief Knowledge Officer, FlexPaths

Employers are often concerned about two kinds of risks regarding flexibility policies and practices – practical risks and legal risks. What could go wrong in implementing flexibility? Will I be sued? To protect against risk, it is imperative that risk managers and legal personnel understand a new area of the law directly related to flexibility.

Employers have been concerned about the risk that occurs when they offer flexibility. They worry, for example, about backlash from employees who do not have access to flexibility, or risks about security or injury from employees working remotely. But there's a disconnect between what employers worry about and what actually happens. In reality, the risk comes less from offering flexibility, than from implementing it in inappropriate ways.

Because flexibility has now been successfully used by employers for more than a decade, we can draw from experience to learn how to minimize the risk involved.
Family Responsibilities Discrimination (FRD) is the new face of sex discrimination at work. The definition of sex discrimination now includes employment actions based on assumptions about how workers may act based on their family care-giving responsibilities. Now termed Family Responsibilities Discrimination (FRD), FRD is established in case law with courts ruling that taking negative employment actions because of a worker's family responsibilities is unlawful.

Case examples
     Assuming that a woman who requests to work on a reduced schedule (perhaps following childbirth or to care for an aging parent) will be or is doing lower quality work.
     Applying stricter workplace rules and performance standards to men or women using flexible (including part-time) schedules while applying more lenient standards to others.
     Requiring employees using flexibility to prove their competence in ways that other employees are not required to.
     Judging employees on flexible schedules (including part-time) strictly on their accomplishments, while judging others in part on their potential.
In comparing treatment of employees, in these FRD cases, the proper comparison is not how a female is treated vs. a male, but rather how an employee with family responsibilities is treated as compared to an employee without family responsibilities, regardless of gender (Center for WorkLife Law, 2006).

Policy and practices that on their face may seem neutral can require a new level of scrutiny because in the context of FRD cases, they disparately impact caregivers (again, who are predominantly women) and therefore constitute sex discrimination.

Avoiding legal snares
To avoid legal actions caused by employees and applicants, who assert that they have been rejected for employment, subjected to hostile work environments, not promoted, or terminated based on employers' negative assumptions about the value and performance of employees with care-giving responsibilities, the following steps are recommended by the Center for WorkLife Law (http://www.worklifelaw.org/).
     Add language to your existing anti-discrimination policies to add family responsibilities discrimination to other types of unlawful discrimination prohibited by these policies. Alternatively, create a new stand-alone policy.
     Notify employees of the change to existing policies and/or employee handbook.
     Hold anti-discrimination and anti-harassment training for employees and managers that includes family discrimination.
Make sure your organization is protected by implementing and managing flexibility the right way.

FlexPaths is the leading provider of flexibility systems and solutions for employers and employees.  For more information see www.flexemployer.com or contact Karol Rose, Chief Knowledge Officer, FlexPaths at karol.rose@flexpaths.com.