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.

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).

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.

Q: Last week I found out I was pregnant and my husband and I were overjoyed. The next day, I went into work and told my boss. He said that he does not allow pregnant women to work there because they disrupt scheduling when they take time off to have the baby. He terminated me and said I could re-apply for my position after I have the baby. Help!

--Pregnant and Unemployed (CA)

A: As you probably know, it is illegal under both federal and California law for an employer to terminate an employee because she becomes pregnant.

Pregnancy Discrimination Claims

Pregnancy discrimination is actually a form of gender discrimination. The rationale is that only women can become pregnant, so discriminating against a woman for being pregnant is essentially discriminating against her for being a woman.

Medical Leave Claims

Your situation also constitutes discrimination under the California Family Rights Act and other medical leave laws. If you are terminated because your employer anticipates you will be taking time off that is protected by the law, it is basically the same as if you were terminated for taking that leave after the fact.

Pregnancy Discrimination Claims More Successful

A recent survey showed that pregnancy discrimination cases seem to have a higher success rate than other employment discrimination claims. I believe this is the result of a few related factors.

First, an employee can point to a specific date when their employer found out they were pregnant and if the employer terminates or otherwise discriminates against the employee a short time later, it is clear that pregnancy was the reason.

Second, it just "makes sense" that an employer would tend to discriminate against pregnant employees. In California an employee can take up to four months of protected leave for the birth of a child. The employer essentially gets a few months notice that an employee will definitely be taking such a leave in the near future. It is only human for a manager to decide that things might go more smoothly if the pregnant employee was replaced.

This, of course, does not make it right.

Damages in These Cases are Sobering for Employers

When the inconvenience of employing a pregnant woman is compared to the potential damages a company might be forced to pay her later if she successfully sues them, it should be all to clear to them that not terminating her is much cheaper than terminating her.

This is especially true for employers in California, where they can be forced to pay an employee her lost wages, attorney's fees, and virtually unlimited emotional distress and punitive damages.