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.

A Reuters story this morning deals with what is both one of the most liberal paid leave policies I have ever seen and also one of the most blatantly discriminatory.

Hime & Company, a Tokyo-based marketing firm, offers paid leave to employees who have a bad breakup, termed "heartache leave".  While this is quite generous and one could argue that such a leave is often necessary to regain your composure, the terms are quite interesting.  Employees 24 years old or younger only get one day off, those between 25 and 29 get two days off and those 30 or older get three days.

CEO Miki Hiradate explains the reason for these different policies: "Women in their 20s can find their next love quickly, but it's tougher for women in their 30s, and their break-ups tend to be more serious."

I won't go into the age discrimination implications for women over 40, because this story is from Japan and the odds of this happening in the US are virtually none (unless you work at Tribune, Co.--then all bets are off).

An article in Thursday's Los Angeles Times discusses their own parent company, Tribune Co.'s new employee handbook that was introduced by their CEO, Sam Zell, via a recent e-mail to employees.

This caught my eye because it is not every day that a company publicly releases or discusses their employee handbook. In fact, many handbooks actually state that its pages are the employer's property and must be returned at the end of employment.

The (Bad) Idea

According to Zell, the handbook outlines "our company's new core values" and "reminds us not to take ourselves too seriously, and to have fun." Unfortunately for the Los Angeles Times, legal documents (which are almost always referred to in employment law cases by one or both sides) do serve a legal function.

Although the handbook has the requisite disclaimer stating that it is not a contract, its provisions may be modified at any time, etc. and contains a footnote stating "Of course, Tribune follows...state laws," this will not let them off the hook in future litigation.

In provision 18.1.4 of the new handbook, the Tribune points out that:

It's good judgment not to put in writing what you don't want printed on the front page of a newspaper. Or posted on a website...

The company probably should have taken its own advice and left some of these provisions out of their official employee handbook, but it appears they did not consult an attorney before releasing it, so now they are stuck with it.

Use of Employee Handbooks in Litigation

Employee handbooks are used in litigation to demonstrate an employer's mindset, attitudes or as foreshadowing conduct at issue in a lawsuit.

For example, a handbook might say "you will be terminated immediately if you cannot satisfactorily perform your job due to a medical condition" (from an actual handbook I have seen in a case).

This is extremely good evidence in a disability discrimination or family medical leave case because it can be used as proof that the employer has already stated its intention not to comply with the law.

Examples from the Tribune Handbook

Here are some examples from the recently implemented handbook that point out that likely will cause its outside employment counsel to drive their head repeatedly into the nearest brick wall.

Harassment is not "Harassment"

From section 4, "Harassment Policy (Sexual & Otherwise), of part 3, "Employee Manual" of the handbook:

4.1 Working at Tribune means accepting a creative, quirky,...odd, humorous,...opinionated and sometimes annoying atmosphere.

4.2 Working at Tribune means accepting that sometimes you might hear a word that you...might not use...experience an attitude you don't share...[or] hear a joke that you might not consider funny.

4.3 This should be understood, should not be a surprise and is not considered harassment.

4.4 Harassment means being told that a raise, promotion or other benefit is dependent on you going on a date with your boss or some other similar activity. (emphasis added)

Provision 4.4 actually refers to the relatively uncommon "quid pro quo" sexual harassment, which includes "sleep with me or you are fired"-type conduct.

The vastly more prevalent form of sexual harassment is "hostile work environment" harassment, which occurs when a sexually-charged atmosphere is created, such as frequent, unwelcome sexual propositions towards an employee.

In fact, hostile work environment claims include situations where the conduct is not even directed at the plaintiff, such as other employees' constant viewing of pornography in close proximity to her or constant sexual comments about other employees to or within hearing distance of her.

Provisions 4.1-4.2 could easily be read to encompass a hostile work environment and 4.3's bold statement that in the company's view it is simply "not considered harassment". It does not take much work for a plaintiff's attorney to argue that this provision basically says that the company does not consider hostile work environments to be a form of harassment.

If an employee complains about such conduct and is ignored or retaliated against, provision 4.3 will be very damaging to the employer's case because its state position is that there is nothing wrong with the conduct in the first place.

Managers Love it When You Question Their Authority

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.

In theory, this might seem to be a "breath of fresh air" and a great company-wide "open door policy". However, in practice this policy is likely bad for both employees and the company itself.

For the company, it is basically a promise that they will not take any action against an employee for complaining, no matter what it is about or how much they complaint. Every workplace has an employee who just loves to complain about anything and everything constantly. This provision both encourages such behavior and bars management from doing anything about it.

On the other side of the issue, I advise employees every day to be careful with taking such open-door policies too literally. It is commendable for a company to have a well-intentioned policy like this in place, but it has to be (and rarely is) followed by lower-level managers who usually do not like their orders or policies being questioned. In only a rare case will the employee earn any "respect" for complaining.

If an employee takes advantage of a policy like this, they should do so in writing and document both their complaints and their supervisor's reactions. That way, if retaliation does occur then there is a paper trail to prove it.

Alcoholism: Only Disease You Can Get in Trouble for Having¹

7.1 If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated...

Alcoholics and drug addicts are considered to be disabled under California law and an employer terminates them for it at their own risk. In many circumstances, the Americans with Disabilities Act also applies to these situations.

In fact, under California Labor Code § 1025-1028, employers are required to reasonably accommodate these employees by allowing them to attend an alcohol or drug rehabilitation program if they have a substance abuse problem.

These types of disability discrimination claims are often difficult to prove and an uphill battle to establish that the disability (and not its side effects along, e.g. tardiness, poor performance) is the reason for termination.

However, a handbook provision like this could be the piece of evidence that wins the case, since this is singled out as a specific reason for terminating a poor performer. In other words, it does not say "If you have a mental breakdown and fail to perform...," so an argument that the difference is the specific disability itself is the reason gains a great deal of credibility.

"The company intends to actively discriminate..."

2.4 The company intends to actively discriminate based on job performance, ability and attitude.

2.5 Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability, or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited.

There are a couple of issues with this provision that merit discussion, both of which can turn out bad for the company.

First, these paragraphs essentially promise that they will not terminate or otherwise discriminate based on any reason not related to performance, ability or attitude. Therefore, budget cuts, general "personality conflicts" with co-workers or management, or simply their manager's not liking them are not valid reasons to terminate or take any other action against an employee.

Second, while singling out someone with the "inability to tell a joke, the occasional poor wardrobe choice or bad hair day" as "unprotected" is clearly intended as a light-hearted joke, it could also be applied to that "weird" janitor/mailroom person/manual laborer who works for the company. I have represented some of these employees who are terminated for their social awkwardness which is sometimes a symptom of a disability such as mild autism.

While this may seem far-fetched, Tribune Co. has tens of thousands of employees and such an issue is bound to arise at some point in the next several years.

That's What Employment Law Attorneys Are For

Apparently the handbook was actually written by Randy Michaels, Tribune's CEO for Interactive Broadcasting. He has said he believe that "The more policies you have, the more opportunities there are for someone who is very unhappy to sue." However, with the right disclaimers in place, breaking a promise in an employee handbook itself provides no basis to sue.

Although our firm only practices employee rights law and does not advise employers or draft employee handbooks, this is most certainly the kind of thing that makes management-side employment law attorneys crucial in preventing lawsuits and other problems before they occur.

Mr. Michaels seems all too eager to say he is "amazed and amused at what lawyers get businesspeople to do," suggesting that other companies who pay lawyers to write (as the LA Time piece puts it) "the mind-numbing, lawyer gobbledygook in most corporate manuals" are being swindled or misled. In fact, that "gobbledygook" is often instrumental in successfully defeating many lawsuits by employees.

Once the Tribune faces its first lawsuit where this handbook is used as evidence against them, they will hopefully realize that Mr. Michaels has actually created more legal liabilities than he has prevented.

At that point, I will feel sorry for the attorney who has to defend a company that believes they will "have fewer legal problems with plain English and common sense than with pages and pages of rules". Essentially, that their own gobbledygook is better than any gobbledygook a lawyer could have written for them.

Good luck with that.

This is our final installment in a series dealing with employee rights laws that California's legislature passed in 2007, but which Governor Schwarzenegger vetoed last month before they could take effect.

SB 836

Senate Bill 836 was heralded nationwide as the first law prohibiting employer discrimination against employees based on their "family status".

For example, discrimination against employees who are single parents who have to take their child to the doctor would be prohibited. Also, if the child is sick at home and has nobody else to care for them, the employee could actually take protected, unpaid leave to do so.

I think this bill was a step in the right direction, but I do have to agree that its reach was far to broad to avoid the Governor's veto stamp. If certain limits can be added to the measure to keep its use reasonable, I believe the legislature can pass a satisfactory bill in the near future.

This is the second post in a series on several very important bills the California legislature passed in 2007 to protect employees that the Governor vetoed at the last possible moment last month.

SB 537

Despite supporting a strong new law providing protected leave to military spouses whose husbands or wives are on leave from service, the Governor promptly vetoed similar protections for employees needing leave for other, arguably more important reasons. Senate Bill 537 would have given employees the right to take family medical leave to care for the following persons:

1. The employee's seriously ill children (regardless of their age);
2. The employee's seriously ill in-laws;
3. The employee's seriously ill grandparents or grandchildren;
4. The employee's seriously ill sibling; or
5. The employee's seriously ill domestic partner.

Without this bill, employees who have seriously ill adult children, young grandchildren or siblings may be forced to choose between either losing their job or caring for their loved ones. Some might argue that these individuals are not "immediate" family, so the protections of family medical leave should not extend to them. However, the situation is not always so black and white. For example, if an adult child is not married, a parent might be the only person who is available to care for them. Imagine having to work at your job while your younger sibling is dying at home because your employer will not let you take time off of work to care for them. This is a real dilemma for many employees who have their own immediate families to also think about and cannot afford to be terminated, but are also needed to care for other close family members. These are the kinds of protections that should be "no brainers" under California law. If an employee's domestic partner is seriously ill, they should be able to take time off to care for them. Period.

SB 549

Senate Bill 549 was a similar provision that would have allowed employees four days of bereavement leave if, for example, their spouse dies. You may be thinking to yourself, what employer would fire an employee for going to their wife's funeral? Well, I have seen it happen more than once and there is no law that prohibits it. Family medical leave protections disappear as soon as the person being cared for dies. Do we really want to force someone to choose whether to go to their child's funeral or lose their job?

California has passed a law providing employees whose spouses are on active military duty with protected leave from work to be with their spouses when they are on leave from duty.

Governor Schwarzenegger signed Assembly Bill 392 into law last month and it became effective immediately. The Bill has two main components:

1. An employer of more than 25 people must provide an employee with up to 10 days of unpaid leave when their spouse is on leave from military duty; and
2. The employer is prohibited from retaliating against a qualified employee for requesting or taking this leave.

To me, one of the most surprising aspects of this law is that the employer must grant the leave, regardless of the circumstances-no exceptions. This is uncommon in employment law where there are usually at least some exceptions where the employer can deny the leave.

Under the Family Medical Leave Act, for example, non-emergency medical leave requests the employer can make the employee wait to take the leave if they are a "key employee" or if it is a very busy time of the year for the employer. Other leave laws allow similar exceptions where it will cause a "hardship" on the employer.

However, under this new California leave law, it looks like employers have no right to deny the leave request, no matter how essential it is that the employee be at work. This does make sense, of course, because the employee's spouse will only be off of leave during a set period of time.

This is a very interesting development in the law and the fact that it went into effect immediately makes me wonder how many spouses and military personnel know about it. If you know someone who has a spouse in the military, be sure to remind them of this opportunity to take time off from work to be with their spouse!

Sometimes it is easy to forget that discrimination against women, minorities and (of course) minority women still occurs in this country.

This might bring to mind examples where uneducated, unskilled women are denied employment and/or harassed by uneducated men who think of them as sex objects, such as in the movie North Country.

However, as discussed on Susan Cartier Liebel's blog, this subject comes up in all areas of employment, including lawyers. Susan discusses the recent Wall Street Journal blog post: "When You Land The Job Interview, Should The Ring Come Off?", which discusses whether lawyers should ditch their wedding ring for job interviews.

At first glance, some might think of this as paranoia, but an anonymous legal recruiter actually explains how the partners at law firms specifically tell him they prefer male over female recruits because they think these women will eventually get pregnant and either take time off or leave to start a family.

Sometimes employers are ignorant of the law and actually come right out and ask applicants about their family life for this very purpose. They ask things such as whether they plan to have children, what their husband thinks of them working outside the home and other questions that are not only illegal, but often extremely offensive.

While I would take this as a "red flag" that this is someone you might not want to work for, here is an article about how to deal with such questions "tactfully".

In California, it is illegal to hire a man over a married (or unmarried) woman for any of these or similar reasons. Marital status discrimination is not hard to prove when an employer makes it a habit of doing this. All you have to do is look at the list of who is hired and who is not when new employees are hired.

Q: I took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?

--Unemployed (CA)

A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most employer are reluctant to terminate an employee who is out on a medical leave, the law does not explicitly prohibit terminating such an employee.

The Family Medical Leave Act ("FMLA") and its California counterpart, the California Family Rights Act ("CFRA"), protect employees from being terminated because they take a medical leave. It does not totally prohibit termination of an employee while they are on a medical leave. The difference is subtle, but it is there.

For example, assume a salesperson is out on FMLA leave and his company lays off their entire 100-person sales force. The employer is not required to keep the salesperson on medical leave on their payroll and terminating the salesperson would not be an outright violation of the FMLA.

However, if the salesperson is the only one out of the 100 salespeople to be laid off and there is no other clear reason for the termination, it begins to look more like the employee is being laid off because they are on an FMLA leave.

So, in response to your question, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.