FAMILY RESPONSIBILITY DISCRIMINATION: The Hidden Violations

By Anne-Marie Mizel
Shea Stokes Roberts & Wagner, ALC

Responsible companies have long since become aware of the need to combat discrimination on the basis of race, sex, age, and disability, though incidences of such discrimination unavoidably crop up from time to time.

But even responsible companies making every effort to comply with the law may be engaging in conduct or enforcing policies that are potentially illegal. Does your company have a strict, inflexible attendance policy? It may have an unlawful disparate impact on women, who are more likely to be child-care and elder-care givers, and particularly women of color, who are more likely to lack alternative child-care options in the event a child is sick or a crisis arises. Does your company discourage or preclude men from taking child-related leave that is routinely granted to women? This too is sex discrimination. Has your company ever failed to hire or promote someone due to his/her ongoing need to care for a disabled family member? This could be a violation of the Americans with Disabilities Act (as well as the Family & Medical Leave Act)¹.

The Equal Employment Opportunity Commission (“EEOC”) has made known its awareness of this problem. On May 23, 2007, the EEOC issued an enforcement guidance entitled Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (“Enforcement Guidance”), in which it discusses many of the above issues, and more. If the EEOC is paying attention to these issues, employers must do the same, or risk expensive and time-consuming litigation based on problems they may not even realize they have.

It is not usually unlawful to distinguish between employees based on factors other than the specific characteristics protected by law, such as race, age, sex, etc. However, the facts of any particular case can suggest that unlawful discrimination has played a part in an employer’s decision, whether or not this was intentionally or consciously done. Some examples follow. Attention to the issues discussed in this article, and a few simple rules, can alleviate the likelihood that a discharge, failure to hire or failure to promote will ripen into a lawsuit.

Types of discrimination. Unlawful discrimination in the workplace usually takes one of two basic forms: disparate treatment, intentional distinctions made between individuals based on protected characteristics such as race or sex; or disparate impact, in which apparently neutral policies have a burdensome effect on individuals with certain protected characteristics. Disparate treatment also has a subset, stereotyping, in which distinctions are made between individuals not based on actual differences, but on stereotypical assumptions about the appropriate or expected behavior for someone in a particular protected classification. Family responsibility discrimination can entail any or all of these.

1. Discrimination Against Working Mothers

Disparate Treatment. Stereotyping. The most well-known form of family responsibility discrimination is discrimination against working mothers, and it is primarily based on stereotypes. Women have historically borne the lion’s share of childcare responsibilities, and some employers have therefore been more likely to hire a man than a woman, assuming that a man, whether or not he is a father, will have fewer such responsibilities that might detract from his devotion to the job. Most employers already know not to ask a job applicant about family status, but the topic sometimes arises in the course of making small talk prior to or during the job interview. Once an employer has been made aware that the applicant has child- or elder-care responsibilities, the possibility arises that a claim of discrimination may be made. It is best to avoid any discussion in the context of a job interview that would potentially broach the topic of an applicant’s family situation.

The same is true for women of child-bearing age who might be considering starting a family. An employer should never ask whether a woman is thinking of getting pregnant.

Women may nevertheless get the short end of the stick in hiring and promotions because of an employer’s assumptions that women will be more likely than a man to have competing demands on their time. Employers must be careful to avoid decision-making on this basis, lest a pattern of male-dominated hiring or promotions lead to a lawsuit.

Intentional Discrimination. Sometimes, intentional discrimination can be well-intentioned. An employer may refuse to employ a pregnant woman or a woman of child-bearing age in an environment that the employer believes may be toxic to a fetus². An employer may refuse to promote a woman with children into a position that is more demanding of her time, believing that she will be unable to cope with the demands. These are not legitimate reasons for the employer’s actions, and could give rise to a discrimination claim, particularly if the successful candidates for the positions are male, but even if the successful candidates are women without children or the potential for bearing children.

Disparate Impact. A murkier area involves policies that have a disparate impact on women. A facially neutral no-fault attendance policy will likely have a greater impact on women, because women are statistically more likely to be primary caregivers – either child-care or elder-care – and unexpected illnesses and crises can cause them to be unexpectedly absent. This is especially true for African-American or Hispanic women, who are less likely, on the average, to have back-up child-care options than white or Asian women.³

Does your attendance policy give any credit to someone who calls in promptly about a sudden inability to attend work? Does it allow for flex-time, or working from home where feasible? Even if a strict attendance policy is apparently lawful, any misstep in enforcing it could give rise to a claim of discriminatory treatment. Moreover, strict policies such as these may unwittingly weed out employees who are worth keeping, despite the possibility that they may sometimes be absent due to their family responsibilities.

Example. The employer’s rule is that eight (8) unplanned absences necessitates termination, without regard to circumstances. A female employee has had eight (8) absences in a calendar year, all of which were due to her children’s illnesses. In every case, she called in immediately to inform her employer of her necessary absence, brought in doctors’ notes as evidence of the children’s illnesses, and offered to make up the work by working late the following day. A male employee has had seven (7) absences in a calendar year. In four instances, he said his car broke down. In three instances, he claimed to be ill, but failed to bring in a note from a doctor. In all seven incidents, he called in only a few minutes before his shift was due to begin. All of his absences occurred on a Friday or a Monday.

There are two issues that arise from this example: First, and most important, which appears to be the more conscientious employee, the one who is likely to be of greater value to the company? The female employee made every effort to attend, always had legitimate reasons for her failure to do so, and offered to make up the work. The male employee, by contrast, was absent in each case on the day before or after a weekend, and made little effort to alert his employer so that his work could be promptly assigned to others. The female employee appears to be more committed and responsible. Yet the attendance policy would require the termination of the female employee and the retention of the male employee.

Second, could the strict enforcement of an attendance policy whose effect is to discriminate against a conscientious working mother be interpreted as unlawful in its impact upon her, even if the policy itself is neutral? The EEOC has not made a statement either way, but a disparate impact claim would not be obviously frivolous, as long as statistics showed that the policy caused more terminations of women than men.

In short, inflexible attendance policies, while appealing from the standpoint of providing a “bright line” rule, may be risky when actually applied, both from a legal standpoint and from the standpoint of ensuring that the company retains its best workers.

2. Discrimination Against Working Fathers. There is nothing wrong with offering pregnancy leave to women and not to men, of course. However, any other kind of family leave must be offered equally to men and women, and both must be permitted to take such leave on equal terms.

It is, once again, stereotypes that most often cause problems in this area. Employers that are accustomed to giving parental leave to women, or accommodating them with flex-time or part-time work when requested, sometimes have difficulty offering the same flexibility to men because of a deep-seated view that men are properly the breadwinners, not the caregivers.

Even when men are not denied such leave, they often hesitate to request it because of fears that they will be viewed as insufficiently devoted to their jobs and will be put on a “Mommy track” instead of an upward track at work. These stereotypes thus inevitably perpetuate the traditional burdens on men as breadwinners and on women as caregivers. The law cannot change people’s views, but it is important for modern employers to make known that they will not discriminate against anyone – male or female – for tending to family responsibilities.

3. Discrimination Against Those Caring for a Family Member with a Disability. Most employers know about their obligations under the Family and Medical Leave Act (“FMLA”) to permit full-time employees up to 12 weeks of leave per year to care for a family member with a “serious health condition,” as that term is defined in the FMLA. It is less well-known that the Americans With Disabilities Act (“ADA”) also prohibits discrimination because of the disability of an individual with whom the employee has a relationship or association, such as a child, spouse, or parent. 42 U.S.C. § 12112(b)(4). Thus, an employer who elects not to hire an individual based on his or her need to care for a disabled child, parent, sibling, or spouse, is at risk of violating the ADA, even though the individual would not be entitled to relief under the FMLA. Both laws could apply in a case of failure to promote.

4. Hostile Work Environment. Sometimes an employee with family responsibilities can be subjected to a hostile work environment on the job. For example, mothers who are nursing can be subjected to hostility and unfair treatment when they seek the opportunity to nurse or express milk for later use. If a nursing mother seeks to take part of her lunch break to breastfeed or express milk, an employer should not deny the opportunity unless it actually creates a problem in the workplace (e.g., if the employee is locking people out of the employee bathroom in order to express milk, or routinely fails to return in a timely fashion). Discrimination or a hostile work environment will likely be found if the nursing mother is denied her request, but other employees who seek to take part of a lunch break for an outside activity are permitted to do so. Hostility towards men who elect to work part-time to care for a child would likewise be considered unlawful, since such hostility would likely be based on the stereotypical notion that a man who chooses to work part-time to care for a child is somehow unmasculine.

Conclusion. All hiring, firing and promotion decisions should be made with an awareness of these potential pitfalls. An individual’s caregiving responsibilities should never be used as the basis for any such decision, except where specific accommodation is sought by the employee in question.

• Never discuss an applicant’s family roles or goals in an interview;
• Never deny a father a leave or other accommodation that would be granted a mother, except for pregnancy leave
• Never permit hostility toward an employee due to his or her family responsibilities or choices;
• Never make a hiring, firing, or promotion decision based on the belief that an applicant’s or employee’s family responsibilities will be a factor in his or her performance.
• Avoid strict and inflexible policies that may impact one sex or race more negatively than others.

¹ Although the FMLA will be mentioned at times in this article, the article is primarily devoted to forms of discrimination governed by the EEOC, which does not include the FMLA.

² The Supreme Court has already held this to be unlawful. See International Union, United Auto., Aerospace & Agric. Implement Workers of America v. Johnson Controls, 499 U.S. 187 (1991).

³ Population Reference Bureau, Diversity, Poverty Characterize Female Headed Households, (about 5% of White or Asian American households are female-headed households with children compared with 22% of African-American households and 14% of Hispanic households), cited in the Enforcement Guidance at pp. 3-4, n.18.