This is my second post in our multi-part series on “family status” discrimination, which is becoming more and more common under both federal and state law.

There are many ways family status discrimination can happen in the workplace, some of which are very subtle and difficult to prove. Other types are not subtle at all, such as the topic of today’s post, which is what I call “Moral Stereotyping”.

Moral Stereotyping Defined

Generally in family status discrimination claims the employer is largely concerned about how the employee’s caregiver responsibilities affect them, such as increased absences, less dedication to the job, less focus, unreliability, etc. However. one of the unique aspects of moral stereotyping is that the employer is often more concerned about the well-being of the employee, her child her family or other paternalistic rationale.

Yes, it is true that even in 2008 there are many employers out there who still believe a woman “belongs” at home and that their primary duty is to raise children even to take care of their husband. In these situations, employers might even terminate an employee (to their own detriment) in an effort to force the employee to do what they believe is “right”.

Some commonly-cited motivations based on this theory are discussed below.

“Women Belong at Home”

The notion that a woman simply “belongs at home” is the most common way in which these issues are expressed by management. This is a prime example of the sorts of gender stereotypes that foster discrimination against these employees.

The motivation here is not necessarily what is best for the employee or her child, but instead what the employer thinks she “should” do based on traditional gender roles. These employers think that even if the wife makes twice as much as her husband, she should quit her job to raise the children.

A more poignant way of expressing this can be found in Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001), where the employee was simply told “God made women to have babies”. Speaking of God, several employers do cite their religious views as a basis for this discrimination, which exposes the employer to an additional claim for religious discrimination.

“Children Need Their Mothers”

The traditional notion that children must spend as much time as possible with their mothers is certainly ingrained in our society. This category of cases usually involves an employer who believes they know what is best for the child and believes they are acting in the child’s best interest when they terminate or failure to hire the employee.

For example, in Moore v. Alabama State University, 980 F.Supp. 426 (MD Ala 1997), the employee’s supervisor told her he believed women should stay at home with their family and denied her a promotion because the new job would involve too much travel for a “married mother”, despite the fact that she applied for the job and had already worked out a plan with her husband to accommodate the travel.

Moral stereotyping is not limited to male management employees. Often these issues can come into play when an employee’s female supervisor either has grown children or grandchildren and holds strong views on these issues they are not afraid to make known.

A variation on this theme is where an employee’s supervisor expresses their belief that placing a child in day care is harmful to their development.

Men are the Breadwinners

Gender stereotypes are also commonly used against men. It is no longer unusual for a husband to drop down to part-time when a child is born while his wife, who might make more money than he does, continues to work full-time.

In certain testosterone-fueled workplaces, this can lead to harassment of “Mr. Mom” by co-workers or he might simply be denied the opportunity to work part-time, even though females are allowed to do so.

This type of claim is rapidly becoming more common as working mothers continue to enter the workplace and men volunteer to help with caregiver duties.

“Reverse” Caregiver Discrimination

Occasionally I come across a case where an employee has suffered “reverse” caregiver discrimination.

For example, if a layoff occurs in a company and a supervisor decides to terminate an above-average, single male employee and instead keep the below-average, married father of two.

In California, this more of an example of “marital status” discrimination, which is specifically prohibited under California law, but these facts could also constitute family status discrimination.

I use this example here because the supervisor is simply applying his own stereotypes and morals to “protect” the man with a family based on his own morals and values instead of what is “fair” to the better-performing employee or what is in the company’s best interest.

Bringing Moral Stereotyping Cases

Moral stereotyping cases tend to be the most lucrative and easiest to prove among the various types of caregiver discrimination for a number of reasons.

First, they often involve the most inflammatory evidence that is offensive to the highest number of potential jurors. If a supervisor testifies to his belief that “God made women to have babies” and that this belief was why he did not hire the plaintiff, you can bet that many on the jury may be quite hostile towards the company when awarding the plaintiff damages.

Second, the supervisor who takes the wrongful actions against a plaintiff in such as case is often quite vocal about their motivations when they terminate or refuse to hire because (1) they truly believe they are doing the “right” thing, (2) they want the employee to know that this is the “right” thing and (3) it never crosses their mind that they are handing the employee a substantial lawsuit by “lecturing” them.

Tags

Discrimination | Family Status | Gender | Harassment | Hostile Work Environment | Marital Status | Medical Leave | Pregnancy | Wrongful Termination

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One employment law claim that has been quickly becoming more popular these days is “family status discrimination”. That is, discriminating against someone based on their familial obligations or simply because they have a family in the first place.

Widespread use of this claim is so recent that it does not even have a consistent name in legal circles. We call it “family status discrimination”, but others call it “family responsibilities discrimination”, “FSD” or “FRD” for short, “caregiver discrimination” and countless other names, but they are all the same idea.

This post is the first in a series on the subject which is fairly expansive, quite interesting and can also get confusing.

The Impetus

The reason I bring this subject up now is because I just started a case representing two women against the same former employer who violated almost all of the various family status discrimination theories in dealing with one or both of them.

It is a very interesting case for several reasons, not the least of which is the ironic twist that the employer is an organization that actively promotes equality for women and the building of strong families as its mission.

While settlement discussions are under way, I cannot speak too much about this case in particular, but if it does end up in litigation I will post more details such as the identity of the employer.

The Legal Basis

I should first point out that the term “family status” is not mentioned anywhere in federal or California employment law statutes.

Instead, these claims are based on other existing employment laws, such as gender, marital status or pregnancy discrimination. The Family Medical Leave Act, California Family Rights Act, Pregnancy Disability Leave and other statutes also come into play.

Family status discrimination is one of those areas where employee-rights attorneys are very “creative” in crafting their legal theories. New ways of approaching the claims are constantly being tested in courts across the country and often prevailing.

This series is meant to be an exploration of these various theories and how they can be used under California law to protect employees.

Tags

Discrimination | Family Medical Leave | Family Status | Gender | Harassment | Hostile Work Environment | Marital Status | Pregnancy

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It is fairly common for sweeping employment law legislation to be introduced in the California legislature and I usually do not pay much attention to these bills because they usually do not become law.

One of two things almost always happens: (1) the republicans introduce a pro-employer bill that will never pass the democratically-controlled legislature or (2) the democrats introduce a pro-employee bill that passes but is then vetoed by Governor Schwarzenegger.

However, I gave an interview to a reporter this past week for law360.com to discuss some recently-introduced legislation aimed at severely limiting employees’ rights to meal periods in California that led me to some interesting discoveries.

In researching one of the bills, SB 1192, which was introduced by State Senator Bob Margett on February 12, 2008, I was reminded why I try to ignore these bills, the people who introduce them and the political process in general.

The Details of SB 1192

SB 1192 proposes the following changes to existing law:

SOL Change

The bill changes the statute of limitations for recovering penalties for missed meal periods from four years (under Murphy v. Kenneth Cole) to one year. This would severely limit employees’ right to recovery, which means an employer would have a lot less to lose by breaking the law.

The penalty is one hour of pay for each break not provided, but presumably an employer makes much more profit from one hour of an employee’s work than they pay the employee. Therefore, employers might be willing to risk having to pay more later for that work.

For example, if an employee brings a lawsuit to recover one year of missed meal periods, the employer might have to pay another $12 of pay to an employee for each day worked that year, because they made $30 of profit from that hour of work by the employee.

Violation of California meal period laws is widespread, but only a small minority of employees do anything about it, which makes the small risk of paying one year of penalties worthwhile to an employer.

However, if faced with four years of penalties, an employer might think twice about taking the risk.

Anti-Employee Definition of “Provide”

SB 1192 modifies the law to state that an employer is only required to make a rest period available “without interfering with its use”.

Under this interpretation, employers will argue that if an employee signs a document when they begin employment saying “you are provided with a lunch break” then their obligation is met.

Unless the employer actively prevents the employee from taking the break, such as instructing them not to take a lunch break they are in the clear. This would put the onus on employees who are too busy to take a lunch break to complain about it to their employer in order to get any relief.

Often employers are well aware that the requirements they place on employees mean that taking a lunch break is out of the question. However, they also know that employees are hesitant to complain about the situation because they do not want to seem like a “slacker” or “lazy”, so they work through their lunch breaks.

Time for Taking Break Expanded

This bill changes the law to state that lunch breaks may be given “commencing at any time before the start of the sixth hour of work”.

This would seem to allow employers to mandate that employees take their lunch breaks immediately upon starting work. Essentially employers would be able to get away with telling their employees to come to work 1/2 later than normal and count that as their meal period.

This change completely negates the rationale behind requiring employers to provide meal breaks in the first place.

Purpose of SB 1192 Misrepresented to the Public

After introducing the legislation, Senator Margett issued a press release entitled “Senator Margett Calls for Flexibility In Meal Periods For All California Employees and Employers”.

The release only mentions the last change discussed above regarding the timing of meal periods and totally misrepresents its effect. He tries to pass this off as a bill that has the sole purpose of allowing employees to take their meal period during their 5th hour of work instead of before the 5th hour, which current law requires in most situations.

The Senator repeatedly tries to make it sound like the only reason he introduced SB 1192 is that “too many employees must take their lunch breaks at unreasonable hours”. In fact, as I outlined above, this bill has the opposite effect, allowing employers to require that breaks be taken at unreasonable hours.

Senator Margett has essentially told the public he introduced a bill that expands employees’ rights when it really destroys the rights they have under current law.

Tags

Breaks | Legislation | Wages and Hours

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Ok, so this topic has been blogged to death by not only me, but the blawgosphere as a whole. However, I just received this update to the story.

Sam Zell, the head of Tribune Co., met with his employees/journalists last week at the Orlando Sentinel, one of the newspapers covered by his idiotic/inspiring (depending on which side you are on in the debate) new employee handbook.

One employee asked Mr. Zell about the direction the newspaper was heading and asked some follow up questions when she felt like he did not answer her question directly. At the end of the exchange, Mr. Zell simply said: “F*ck you” to the employee and left it at that. Unfortunately for Mr. Zell, a video of the incident quickly made its way onto YouTube.

I would direct Mr. Zell to the following paragraph in the handbook he so proudly introduced just last month:

8. QUESTION AUTHORITY. …Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions.

Apparently Mr. Zell isn’t very concerned about practicing what he preaches. When “feel good” handbook policies like this are not followed by management, a culture of cynicism and hypocrisy emerges in most companies.

This is probably even more true in the case where the person who created the policy and widely publicized its merits, violates its own terms just a few weeks later just as publicly.

Mr. Zell has stated publicly that he tried to contact this employee twice and not been able to get in touch with her. Also, she has refused to comment about the incident to the media.

Sounds to me like she, and likely other Tribune Co. employees, have learned their lesson about talking out of turn and not to “question authority”.

Tags

Employee Handbooks | News | Opinion | Retaliation

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Apparently there is a new game show out called “Moment of Truth” that gives contestants a lie detector test before the show and then the host asks them the same questions on the air. If the contestant’s answer on the air is different from the results of the polygraph, they lose (up to $500,000).

Questions include topics such as whether the contestant has cheated on their spouse, wishes to cheat on their spouse, has various addictions and other very personal areas.

I have no idea who would volunteer to go on this show, especially after knowing the questions in advance. If you know that you could be about to reveal on national television that you cheated on your spouse, why would you go through with it?

Employment Law Issues

I want to clarify that I myself have never actually seen the show, because the ads alone made me cringe. However, an article yesterday on CNNMoney.com questioned the employment law implications for those who go on the show and may be disciplined at work for what is revealed.

Past questions have included whether a personal trainer ever touches female clients more than necessary. He answered “no,” but apparently the lie detector revealed that the true answer was “yes“. On the same episode, a contestant admitted to looking through their co-workers’ desks.

CNN Got Bad Legal Advice

Unfortunately for the author of the CNN article, the attorneys he spoke to gave extremely bad legal advice when asked whether employers could legally discipline these employees based on the show.

The responses from the lawyers included that the information would be “fair game” for discipline and that “It would be neither illegal nor unfair” to do so.

However, these answers are just plain wrong. The Employee Polygraph Protection Act (29 USC 2001-2009) specifically makes it illegal to:

discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take such action against…any employee or prospective employee on the basis of the results of any lie detector test.”

There is no requirement that the employer itself administer the test and any employer who violates this law is liable to the employee for lost wages, benefits, costs, attorney’s fees, and a $10,000 civil penalty.

It Could Happen

It is not unprecedented for an employee to be terminated from a job for what they say or do on a TV show. For example, on the second season of The Apprentice, one of the candidates was terminated (from her “real life” job, not by Trump) for describing some elderly women as “two old Jewish ladies”.

If an employee is “caught” in a lie on Moment of Truth and the employer terminates the employee for it, then it would be a clear violation of the prohibition of adverse action “on the basis of the results of any lie detector test”.

Should it be legal to terminate an employee for essentially admitting on national TV that he likes to touch his female clients a little too much? Probably.

Is it legal? No.

Tags

Discrimination | Privacy | Wrongful Termination

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