Family Status Discrimination Series
Published by James Peters April 16th, 2008 in Discrimination, Harassment, Medical LeavesOne 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.
Table of Contents for This Series
Tags
California Employment Law | Discrimination | Family Medical Leave | Family Status Discrimination | Gender Discrimination | Harassment | Hostile Work Environment | Marital Status Discrimination | Pregnancy Discrimination
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6 Comments DISCLAIMER
Is it possible that Family Status Discrimination works the other way? I have had two miscarriages and cannot have children and my company knows this. He has been working on getting me a promotion and it fell through because the "powers-that-be" don't see why I need the extra money since I don't have a family. This doesn't seem like it should be allowed.
@Bethany: Family status DOES work both ways. I will be doing a post on this soon, but as a quick answer to your question it is just as wrong to pay someone less because they do not have a family as it is to pay someone without a family less, if that is indeed the motivation for their actions. Although the analysis is very fact-dependent, you would likely have a discrimination case.
I have another question about family status discrimination working the other way. Our company offers 5 family sick days to each employee every year. If you don’t have a family you can’t use them for anything else. What about the people that don’t have or want a family? Shouldn’t they get equal benefits to use in their life pursuits?
Hyrum:
Thank you for the question. In my opinion, this is blatant discrimination based on family status and therefore illegal.
I also have a question about family status discrimination working the other way. I'm single, no children. I was offered a promotion in May 2009 to a mid level management position. I was told by my manager it would change my hours from 9-5 to 8-5, no exceptions whatsover--I could NOT change the hours. I asked if there was anyway to avoid starting at 8AM. I asked my manager if I could start at 8:30 and only take a 30 minute lunch instead of 60 minutes. I was told that a 60 minute lunch was a requirement. For personal reasons, I didn't want to start at 8AM. I know myself and I know I wouldn't serve the firm well if I started at 8AM (long, long commute).The promotion would have resulted in a $14,000 annual increase. I thanked them for the offer but declined the promotion. I know: a lot of people would have jumped at that promotion, but for me, the hours were a deal-breaker.
Two months later, the management position was filled. I noticed the person was sometimes coming in at 8, sometimes at 8:30. I also noticed the person was taking a 30 minute lunch. I asked this person why the staggered start times and short lunch? She responded she has a 6 year old child & is a single Mom. Some days she took her son to school(other days her soon to be ex husband would), so she would show up at 8:30. She said she asked her manager (also my manager--the same man who said I had to work 8-5,no exceptions). Instead of staying until 5:30(to meet the required 8 hour work day), she asked HR if she could take a 30 minute lunch so she could leave at 5PM. They said NO. They she asked our manager, and he said YES. So, due to her family status, she got the exact same working arrangement that I asked for but was refused, and for which I did not accept the promotion.
Once my manager found out I knew this, he told me I could take a 30 minute lunch if I wanted, and get paid for the other 30 minutes. It was a lame attempt to placate me.
But, the bottom line is, I could have had a $14,000 increase in pay if I had been treated like the person who got the management position, the person with a family.
Isn't this family related discrimination the other way around?
Thanks.
What sort of discrimination can happen in families?