by Laura E. Innes of Simpson, Garrity, Innes & Jacuzzi, PC
What is “family responsibility discrimination” and what should your company be doing to comply with California law?
Family responsibility discrimination occurs when an employee suffers an unlawful adverse employment action based on beliefs or perceptions about how workers with family caregiving responsibilities will or should act.
Family responsibility discrimination cases are becoming more prevalent as our population is aging. Those in the “Sandwich Generation” may have to take time off from work to care for their parents and children (and are literally sandwiched between the competing obligations). Taking care of children and/or elders can implicate the intersection of several different federal and state employment laws. Taking leave for caregiving responsibilities can implicate laws such as the Family and Medical Leave Act, the California Family Rights Act, the Americans with Disabilities Act, Title VII, and the California Fair Employment and Housing Act.
Research has identified a few patterns in family responsibility discrimination. If your company is aware of these patterns, it will be better equipped to deal with potentially serious situations long before litigation arises.
These patterns include: (1) the “New Supervisor Syndrome,” where the employee is performing well until a new supervisor comes in and changes the employment expectations and perhaps misunderstands the employer’s obligations under the law to provide leave; (2) the “Second Child Bias,” when a mother is not discriminated against when she only has one child, but the perception or treatment changes when she has a second child or has a multiple birth (with possible assumptions at play about working mothers and the belief that “a mother can handle one child and work, but two are too much.”); and (3) the “Elder Care Effect,” where an employee has to care for an elder and is subject to an adverse employment action because of taking leave.
Employers need to be aware of these situations in order to educate and train their supervisors. While caregivers are not necessarily a protected class, adverse employment actions similar to the patterns described above can spark a costly lawsuit against your company. Therefore, it is vital to understand the law concerning caregiving responsibilities and what your company should be doing to comply with legal requirements.
On November 9, 2011, Laura Innes will be presenting an ERI webinar, “Aging Parents & Sick Kids: How to Minimize Liability for Bias and Retaliation Claims Made by ‘Sandwich Generation’ Employees.” Learn more or register for the webinar. Or view a complete listing of upcoming ERI webinars.
Laura Innes, a partner with Simpson, Garrity, Innes & Jacuzzi, PC, is engaged exclusively in the practice of labor and employment law. Her practice combines preventive counseling for clients with civil and administrative litigation defense. In addition to litigation and preventive counseling, Innes effectively employs alternative dispute resolution, such as mediation and arbitration, to efficiently and effectively resolve sensitive employment disputes.