Family Responsibilities Discrimination Lawyer

Family responsibilities discrimination occurs when an employer discriminates against an employee who has or had to take leave for family caregiving responsibilities. The employee can be a mother, father, pregnant woman, spouse, or partner who has to care for:

• a child –a biological, adopted, step, or foster child or a legal ward
• a parent – biological, adoptive, step, or foster parent
• a spouse, non-married partner, or a domestic partner.

This type of discrimination happens more frequently than you may think.

Data from the California Department of Fair Employment and Housing (DFEH) shows that family care is the basis for approximately 5% of all employee complaints and is the basis for around 7% of all lawsuit discrimination cases. To note, complaints and lawsuits can be filed on more than one basis.

Family responsibilities discrimination has increased, too, over the last few decades. In part, that may be because most of these cases are brought by women, and over the last few decades, more and more women have joined the workforce, making up about half of it today, which means more women are placed in positions where they can be discriminated against based on their family caregiving responsibilities. At the same time, more men are helping care for their younger children, and as a result, they may take more time off for this purpose. In turn, they may face discrimination because of it.

California does not have a statute that expressly prohibits family responsibilities discrimination, but there are laws with special protection clauses for caregivers. Two of these laws include:

1. California Labor Code § 1030 requires employers to provide special accommodations for lactating mothers to pump throughout work hours; and
2. California Labor Code § 230.8 prohibits employers from discharging or otherwise discriminating in any way against employees who are parents and who take up to 40 hours of leave each year to do things like:

• participate in a child’s school or daycare activity,
• go to a child’s school for other reasons, like suspension or expulsion.

Federal statutes typically employed to protect workers discriminated against based on caregiving duties include:

Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination;
The Family and Medical Leave Act (FMLA), which prohibits discrimination or retaliation against employees who have taken FMLA-protected leave to care for a family member, to birth a child, or to adopt a child;
The Pregnancy Discrimination Act, which prohibits discrimination based on pregnancies, plans to get pregnant, and childbirth;
Americans with Disabilities Act, which prohibits discrimination based on affiliation with a person who has disabilities – applicable in situations where an employee must care for a family member with a disability;
The Equal Pay Act, which prohibits discrimination against an employee based on sex by paying employees of one sex less than employees of the opposite sex.

Because of the alarming increase in family responsibilities discrimination, the  U.S. Equal Employment Opportunity Commission (EEOC) released guidance on this type of discrimination for employers. This guidance informs the way employers should act toward applicants and employees, especially those who are or are believed to be caregivers in any capacity. Examples of this guidance to employers include:

• advising employers to concentrate on job qualifications when recruiting, hiring, and promoting employees;
• training supervisors and managers about caregiving responsibilities and how to treat employees with these responsibilities;
• reviewing policies and practices to ensure that employees are not being penalized or otherwise discriminated against based on
• family responsibilities;
• offering flexible work arrangements to accommodate employees with family responsibilities; and, among other guidance,
• investigating complaints of caregiver discrimination promptly but without the threat of retaliatory action.

Basically, employers cannot take any of the below discriminatory actions, among others.

• An employer cannot stereotype based on a person’s sex.
• An employer cannot penalize a person for taking leave to care for a family member, like a child or an elderly parent.
• An employer cannot criticize an employee for taking personal days to care for family members.
• An employer cannot deny an employee leave for caregiving duties when leave is provided to other employees for purposes unrelated to caregiving duties.
• An employer cannot retaliate in any way against an employee who complains or files a complaint/lawsuit about any of the above discriminatory actions.
• An employer cannot wrongfully terminate an employee’s position based on sex stereotyping or family caregiving duties.

There are no exceptions to family responsibilities-based discrimination. Employers simply cannot discriminate against you if you need to care for family members or if you are a woman and get pregnant.

For example, if an employee holds open a job for a person recovering from surgery, then the same employer should do the same for you while on leave to birth to a child. If an employee can take time off in the afternoon to engage in some fun activity, then you should be able to take off an afternoon to chaperone a field trip with your child. At the same time, if an employer requires all employees to be at work on Wednesdays for weekly meetings, then you are given special consideration just because you are a caregiver.

Further, if you need to take more time off than what you have accrued in paid time off, you can. You may be eligible for up to six weeks worth of wage replacement to deliver your baby or, among other reasons, to care for a family member who is very sick. You are also eligible for up to 12 weeks of unpaid leave within a 12-month period, to care for a family member, including maintaining your health insurance. During this period, an employer cannot terminate your position.

There are many examples of family responsibilities discrimination, but some common ones include:

• You are fired without a valid reason when you returned from taking approved maternity or paternity leave.
• You are fired or demoted when you become pregnant.
• You are a qualified mother and your promotion is overlooked for a person less qualified because that person doesn’t have children.
• A reason was fabricated to terminate your position when you take leave to care for an elderly parent.
• You are terminated after telling your boss about an ailing parent for whom you may need to provide care.

Family responsibilities discrimination can sometimes be hard to detect. Actions can be indirect. It’s always important to keep a journal of what’s happening in and outside the workplace. Keep names of people with whom you have spoken. Keep dates of important events or dates of when you spoke to whom.

To determine if you have a family responsibilities or caregiving discrimination case, you need to be able to identify and prove that this discrimination was a motivating factor for the discrimination. Thus, it doesn’t need to be the sole reason or the only reason. In other words, you can bring a legal claim if part of the motivating factor was because you are a caretaker and, for example, took leave to care for a child or another family member, and because of that, in part at least, you were impacted by discriminatory policies or treated with discrimination.

Then, make sure to contact an employment discrimination attorney in Los Angeles. You may have a discrimination case, but each situation is unique and must be reviewed by an experienced advocate. Plus, remedies are available. You may be entitled to things like:

• Reinstatement
• Compelled hiring
• Compelled promotion
• Back pay
• Front pay
• Retroactive seniority and benefits
• Compensatory damages
• Punitive damages unless you are a government employee
• Attorneys’ fees.

As mentioned, you have options if you have been discriminated against based on caregiving responsibilities like becoming pregnant, delivering a baby, adopting a child, or caring for a family member. The two basic options you have are:

1. File a complaint with the DFEH/EEOC, which will investigate your case; or
2. Request a right-to-sue letter from the DFEH/EEOC and bring a civil action in court.

Going to court sometimes gets you the best results, but again, each case is different. Contact Sirmabekian Law Firm, PC to discuss your family responsibilities discrimination case today. This type of discrimination may be direct and overt or it may be the impact of company policies. Regardless of how and why the discrimination materialized, if it exists, you need to take action to safeguard your and your family’s best interests.