Today’s economy has hit many people hard, especially those who have lost their jobs due to no fault of their own. Of course, those employees who have retained their jobs are understandably worried about losing their jobs given the continued Great Recession.

Yet, life goes on and the ‘family responsibilities’ of those fortunate enough to still be employed cannot be put on hold just because of economic hard times. Families with newborn children or children who stay home from school because of medical ailments need parental attention. Also, employees may have infirm and/or elderly parents who also need care, supervision and attention that requires employees to take time off from work.
 

Unfortunately, many employers have not adjusted to this reality and may be hostile to employees who need to take time off from work to care for family members. “Family responsibility” cases have proliferated, and the substantial majority of these cases have been brought by women who have been denied promotions, plum assignments, treated with less respect and/or have been tarred with the stereotype that women with children are no longer interested in advancing in their careers.

According to a Bureau of Labor Statistics Survey published by the U.S. Department of Labor in 2006, women accounted for 46.4% of the 2005 workforce, and 59% of women were actively employed. Moreover, 59% of mothers with children under 3 years of age were employed, compared with 34% in 1975. Even more importantly, a wife’s income has become critical to the economic security of many families and accounts for over one-third of family income where both parents work (see EEOC Guidance: Unlawful Treatment of Workers With Caregiving Responsiblities, pp. 1-2, 2007).

As far back as 1971, the United States Supreme Court ruled that an employer’s practice not to hire women with preschool age children while hiring men who also had preschool age children, was prohibited by the anti-sex discrimination provisions of Title VII of the 1964 Civil Rights  Act. Courts have recognized that an employer’s antiquated view that caring for sick family members is limited to women is illegal ‘sex-based’ stereotyping, even when such care-giving extends to a sick parent or spouse.

Men also face mirror image stereo-typing, i.e. that they are supposedly poorly suited to care-giving and have been denied parental leave or other benefits afforded their female peers. This not-as-common sex-based stereotyping has also been held to violate sex discrimination laws.

Employer’s comments that suggest sex-based stereotyping may be used to prove an employer’s state of mind if an employee is denied compensation, benefits or leave because of their gender. For example, one court ruled that a supervisor who said out loud that “With all these pregnant women around, I guess we should stop hiring women”, was indicative of illegal discriminatory intent on the basis of sex. Other types of comments that courts have ruled indicate an illegal intent to discriminate on the basis of sex are, “He should no longer allow women to work for him because women who have babies lose too many brain cells to continue work”, “Women who have children will and should place their children as priorities, and their husbands should find jobs so women can stay home”, “When a woman has a baby in her arms and she comes back to work, she is less committed to her job because she doesn’t want to really be here, she wants to be with her baby”, and “It was not possible…to be a good mother and have this job”.

In addition to illegal sex discrimination, other federal laws protect an employee’s ability to take leave to care for a family member. The Americans with Disabilities Act prohibits employers from treating employees adversely if they are required to care for a family member who has a disability, under the law’s provision that forbids associational discrimination.

The Federal Family Medical Leave Act (FMLA) provides that an employer must grant twelve weeks unpaid leave to an employee who needs time off to care for a family member such as a spouse, child (whether natural born, step-child, foster child or a child that the employee has parental supervision over), parent or the employee him or herself. Under the FMLA, an employee becomes eligible to take unpaid leave if he or she is employed for at least 1250 hours over the last twelve months. However, an employer may designate “key” employees who are then not entitled to leave, for those employees in the top 10% of compensated employees, as long as that designated employee’s absence would cause the employer substantial and grievous economic harm.

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By Jon W. Green. Jon is a member of the law firm of Green, Savits & Lenzo, LLC in Morristown, N.J.  He and his firm primarily represent non-union employees in employment matters. Mr Green can be contacted at jgreen@greensavits.com, or visit www.greensavits.com to find out more.

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