CASWELL BELL & HILLISON LLP
FRESNO, CALIFORNIA

FAMILY RESPONSIBILITIES AND THE WORKPLACE

There is no federal law called the “Family Responsibilities Discrimination Act” or the “Caregiver Discrimination Act.”  Nonetheless, there has been an increase in claims brought under a variety of federal statutes on behalf of job applicants or workers who assert discrimination by an employer on the basis of family-related decisions.

Relevant federal statutes include the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Family and Medical Leave Act (FMLA).  If the employer is a government entity, the claim may be couched in terms of a violation of constitutional rights.

The trend is clear enough that the federal Equal Employment Opportunity Commission (EEOC) recently published an extensive “Enforcement Guidance” on the subject.  In it, the EEOC sets out to assist investigators, employees, and employers in determining whether a particular employment decision affecting a caregiver may unlawfully discriminate under federal law.

Recommendations for Employers
Some basic recommendations may be gleaned from the EEOC Guidance and relevant court cases.  For example, when an employer interacts with, or makes decisions about, a job applicant or an employee, the employer should focus on the requirements for the job, not on the individual’s family circumstances.

It is also important for an employer to avoid any tendency to assume that a decision made for the employee’s “own good,” even if made in good faith, can only be seen as benevolent.  It could well be considered discriminatory, since an action that an employer sees as generous may be seen by a court as paternalistic and resting on stereotypical thinking.

Prohibited Discrimination
The EEOC Guidance includes a collection of 20 examples of prohibited discrimination, each of which falls within one of six categories: (1) sex-based disparate treatment of female caregivers; (2) pregnancy discrimination; (3) discrimination against male caregivers; (4) discrimination against women of color; (5) unlawful caregiver stereotyping; and (6) hostile work environment.

A few of the prohibited scenarios from the examples are illustrative:

• An employee, who is the mother of two preschool-aged children, is passed over for an executive training program, where some of those chosen were not as qualified, and the only people chosen who had young children were men.
   
• An employer refuses to temporarily relieve a pregnant worker of the part of her job that requires lifting heavy objects, despite her doctor’s advice to avoid such lifting.  An investigation shows that the employer previously had allowed the reassignment of lifting duties for both male and female workers due to injuries or other medical conditions.
   
• Although he is subject to a union contract allowing up to one year of unpaid leave to care for a newborn child, a male teacher is denied his request for such leave, with an explanation that “[w]e have to give childcare leave to women.”  The male teacher is told to request the shorter-lasting unpaid emergency leave instead.
   
• A previously good relationship between an employee and his supervisor deteriorates rapidly when it is learned that the employee’s wife has a severe form of multiple sclerosis. Despite his history of good performance, the employee is removed from projects, subjected to unrealistic deadlines, yelled at in front of his co-workers, and told by the supervisor that the co-workers doubt his ability to do his share of the work, “considering all of his wife’s medical problems.”

© Caswell Bell & Hillison LLP          Attorneys and Lawyers, Fresno, California