Amy L. Lessa, Esq. FISHER & PHILLIPS LLP 4225 Executive Square, Suite 950 La Jolla, California 92037 phone: (858) 597-9600 fax:      (858) 597-9601 www.laborlawyers.com

FAMILY RESPONSIBILITY DISCRIMINATION

“Family responsibility discrimination” has been claimed with increasing frequency over the past few years by parents and other caregivers who feel that they have lost job opportunities as a result of their responsibilities at home. Last month, the Equal Employment Opportunity Commission issued guidelines on the subject, which will likely even further raise awareness of the issue among employees.

In addition, Senate Bill 836 pending in California would add "familial status" to the categories of discrimination banned by the Fair Employment and Housing Act. SB 836 would make it illegal for employers to deny promotions or raises to employees who miss time from work due to obligations with children, sick spouses, and aging parents.

In the meantime, the EEOC made it clear in its guidelines that “family status” is not being added as a new protected category under the federal anti-discrimination laws. Rather, discrimination against caregivers must be based on some already-existing protected category in order to be found unlawful. The most likely categories to apply are sex, disability and pregnancy discrimination.

The EEOC gave examples in its guidelines of unlawful family responsibility discrimination. They include:

• Failing to hire women who have children or plan to have children while hiring men who have or plan to have children.

• Applying “gender stereotyping” to women, such as the assumption that a woman with children would not want a promotion to a job that requires extensive travel., or would not perform well in such a job.

• Barring pregnant women from certain jobs on the assumption that they cannot perform them well.

• Denying leave to male caregivers, such as “paternity leave,” when such leaves are granted to women.

• Refusing to hire an applicant who cares for a disabled child or other relative on the assumption that the applicant cannot perform the job along with the caregiving responsibilities.

• Asking female applicants or employees if they plan to have children, or have more children, or criticizing or questioning a female employee’s plans for a family when similar inquiries are not made of men.

These guidelines will place managers in potentially delicate positions. Most managers want to pick the best qualified candidate for a job or promotion, and an employee with important obligations outside of the workplace may not be the best candidates as a result. These guidelines do not prevent managers from evaluating the potential impact of these commitments, however. They only prohibit managers from applying more scrutiny to one sex than the other, and from basing decisions on assumptions rather than actual experience. A manager may still lawfully inquire of all candidates whether they have outside family obligations that might get in the way of the job, so long as the inquiries apply to men as well as women (and the inquiries should address all non-work obligations, not just family commitments).

These guidelines do not prohibit an employer from disciplining an employee who cannot perform his or her job on account of family responsibilities, moreover. For example, an employee who fails to meet deadlines or who misses too much work may just as lawfully be disciplined if the failure is due to family responsibilities (unless the absence is for the care of a seriously ill spouse, parent or child that is covered by the Family and Medical Leave Act) as if the failure is due to other factors.

This column is intended to provide general information and does not constitute legal advice. Amy Lessa is a senior associate of the La Jolla office of Fisher & Phillips LLP and Legislative Chair of NCPA. She may be reached at alessa@laborlawyers.com.

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