By Jim Holland

Family responsibility discrimination; never heard of it? You will. The number of family responsibility discrimination lawsuits filed against U.S. employers-especially small, local businesses-increased by nearly 400 percent between 1996 and 2005. And, the odds of a plaintiff receiving a favorable verdict are greater than 50 percent, with many cases ending in settlements of $100,000 or more.

Said to be "exploding" onto the employment litigation scene, family responsibility discrimination is a form of gender discrimination involving employees who typically fulfill mothering or caregiving roles for family members, such as children or aging parents. While either male or female employees can claim this discrimination, women file 92 percent of all family responsibility discrimination lawsuits.

Those are just a few of the findings from a recent study conducted by sociologist Mary Still and published by the Center of WorkLife Law at the University of California Hastings College of the Law.

Still cites three reasons for the rise in legal action:

1. A larger number of mothers in the workforce
2. Increased awareness and higher expectations for workplaces free of discrimination based on caregiver responsibilities
3. Increased availability of damages and jury trials since the passage of the 1991 Civil Rights Act

Family responsibility discrimination may appear to be a relatively new type of discrimination, but its legal lineage can be traced back to the 1970s. In the case of Phillips v. Marietta Corp., a woman sued a company for prohibiting mothers of school-aged children from applying for jobs occupied by fathers of school-aged children. The case went to the U.S. Supreme Court, where the company argued that it did not discriminate because it allowed childless women to fill such positions. The court didn't buy the argument and ruled in favor of the plaintiff.

Similar to the woman above, a plaintiff in a family responsibility discrimination case can allege an adverse employment action was rooted in the assumption that an employee caregiver would act a certain way. Here are two examples:

• A supervisor bypasses a working mother or father for a promotion because the supervisor assumes the promotion would compete with the employee's home life.
• A supervisor harasses an employee for becoming a parent or taking family leave to care for an ill relative, assuming the responsibility will make the employee less reliable or less committed to his or her job.
• While no federal law expressly prohibits  family responsibility discrimination, and there is no new protected class, plaintiffs have brought claims under a number of federal statutes, including Title VII, the Pregnancy Discrimination Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Equal Pay Act and Title IX.

By enforcing the same steps you would in preventing other types of discrimination, you can avoid learning the hard way about family responsibility discrimination lawsuits:

• Create a new policy specifically addressing  family responsibility discrimination. Include definitions, examples, reporting mechanisms, enforcement procedures and a statement about your company's commitment to a workplace free from family responsibility discrimination.
• Educate employees about  family responsibility discrimination so they can identify and report it.
• Remind supervisors not to stereotype people based on their family caregiving responsibilities.
• Stress that employees should only be evaluated according to performance and that any negative employment action must be justifiable by legitimate, non-discriminatory reasons.

Family responsibility discrimination poses a formidable risk to employers, but preventing it is possible. And, it's the right thing to do. Understanding this type of discrimination and proactively protecting your employees from it can help stem the exploding number of cases and save you from a costly lawsuit.

Jim Holland is a partner at Fisher & Phillips' Kansas City, Mo., office. He practices labor and employment law, exclusively representing management. You can reach him at (816) 842-8770 or .