This is our third post in our series on "family status" discrimination. The last post dealt with examples of "moral stereotyping" where an employer's belief on what women should do motivates their discrimination. This post deals with what I call "assumption" stereotyping, which deals with instances where an employer is motivated by their beliefs about what women will do, given their family status.

In these situations, the employer's concerns about how an employee or job applicant's home life could affect their job performance are often valid in theory, but not in application. In cases such as these the employer only assumes that the employee will not be willing or able to do the job and has no reason (other than stereotypical views of women) to make their assumptions.

One common example is where an applicant is not hired because the employer assumes she will not be willing or able to work the long hours the job requires because of her (assumed) duties at home. However, it is quite possible that the husband/father or another family member has taken on some of the childcare duties to allow her to work more. Because this decision relies on the employer's stereotypical assumptions about women, this could constitute illegal discrimination.

It is true that it might be valid in certain cases not to hire an employee because she cannot perform the job due to family responsibilities, but the employer would have to have some actual proof on which to base their decision. For example, if during the interview the employer mentioned the job would require her to work no less than 80 hours per week and the applicant responded that she could not possibly work more than 40 hours with two kids at home, then this could be a valid reason not to hire her.

One oft-cited case of this type is Trezza v. Hartford, Inc., 1998 WL 912101 (S.D.N.Y.). In that case, an attorney was not even considered for a promotion because it would have required extensive travel. Her employers simply assumed that she would not be interested in the position because of her family and promoted a less-qualified man instead.

The employee was also told that once her husband made enough money she would be "sitting at home eating bon bons" and the company's vice president commented on the "incompetence and laziness of working mothers".

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.

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.

This is the second in our series of posts based on Presidential Candidate Ron Paul's musings on employee rights in his book Freedom Under Siege. This installment's "Paulism" can be found on page 17 of the book:

The idea that the social do-gooder can legislate a system which forces industry to pay men and women by comparable worth standards boggles the mind...The concept of equal pay for equal work is...an impossible task.... By what right does the government assume the power to tell an airline it must hire unattractive women if it does not want to?

Mr. Paul's opinion that only attractive women should work as flight attendants is amusing, but it does bring up some employment law issues, both explicitly and implicitly.

Gender Identity Discrimination

As a general principle, it is not illegal in California to choose an attractive job candidate over a candidate who is equally qualified but unattractive, as long as this is the actual reason for the decision.

However, issues such as the person being unattractive because of a disability or the person doing the hiring would simply rather work with the less-qualified attractive woman than the highly qualified male applicant, discrimination claims become more of an option.

Another issue this brings up is known as "gender identity discrimination". Essentially, this refers to an employer refusing to hire or firing someone for not "acting like" their gender. For example, a woman who is not feminine enough is rejected for employment by Victoria's Secret or a man who acts too effeminate is terminated from his job as an auto mechanic.

This theory of gender discrimination is still fairly rare, but is much more common than it was even five years ago, especially concerning transgendered employees. The crux of the legal argument is that because adverse employment actions are taken against these employees because they are not conforming to the stereotypical behavior and appearance of their gender, these actions are taken because of their gender, thus making it gender discrimination.

There have been a few cases where employees have made arguments similar to Mr. Paul's hypothetical, but usually not successfully. For example, the 9th Circuit Court of Appeals recently ruled that female casino employees can be required to wear makeup even when their male counterparts are not.

Equal Pay for Equal Work

The undercurrent of Mr. Paul's quote, however, is its reference to "equal pay for equal work." This refers to the Equal Pay Act of 1963 ("EPA"), which is part of the Fair Labor Standards Act and says that, all other things being equal, women must be paid as much as their male counterparts in a company (and vice-versa).

Under Mr. Paul's view, an employer should be free to pay each employee whatever they wish for whatever reason they wish. While this makes sense when all employees are on equal footing when competing for jobs, it ignores the realities of the United States' (and the rest of the world's) ingrained discriminatory attitudes towards women.

The EPA was passed to curtail employer behavior based on outdated stereotypes of women. For example, paying women less because of an employers' belief that:

• Women belong in the home and should be discouraged from entering the workplace;
• Women will eventually quit once they "find" a husband;
• Women will eventually leave to have babies; or
• Women are inherently less qualified or less intelligent than men.

Study after study has shown that women are still paid less than men for doing the exact same job. The EPA was passed in an attempt to remedy this and since its passage the disparity in pay has substantially decreased.

However, when Mr. Paul wrote his book in 1987 the gap was much larger than it is today and blatant discrimination against women in the workplace was much more prevalent.

Conclusion

Apparently Ron Paul thinks bias against women is a perfectly good reason to make pay-level decisions. While he is entitled to his opinion, I am unable to understand how his supporters are more than 50% female.

At first I thought this was similar to his prior racist and homophobic rants, which are somewhat buried in history and do not get much coverage. However, this book is actually heralded by his supporters, including rave reviews by women.

I guess I just don't get it.

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.