On January 1, a new law in New York will make “familial status” a protected characteristic under the state’s fair employment law. With the new law, New York joins several other states (including Alaska, Oregon, Minnesota, Pennsylvania, and the District of Columbia) that expressly prohibit an employer from discriminating against an applicant or employee because of familial status—or, in some jurisdictions—family responsibilities.
Generally, the laws prohibit discrimination against an individual because he or she is a parent of a dependent child, has legal custody of a child, or contributes to the support of a person in a dependent relationship. Although familial status discrimination is most often thought of in terms of housing discrimination claims brought by tenants or prospective tenants, it has been making inroads in the employment setting.
In 2007, the EEOC issued enforcement guidance on “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” that explained how an employment action that affects an employee who is a caregiver might unlawfully discriminate on the basis of prohibited characteristics under Title VII of the Civil Rights Act of 1964 (Title VII) or the Americans with Disabilities Act (ADA).
The guidance points out that caregiver status is not a separate protected category under Title VII or the ADA, but that stereotyping and other kinds of disparate treatment in the workplace may violate the laws.
For example, let’s say an employer allows its female employees to take time off for caregiving responsibilities, but balks when male employees make similar requests. That kind of disparate treatment can get an employer into trouble because it appears to be based on the stereotype that women—but not men—are expected to provide care for family members.
An employer is also vulnerable to a sex discrimination claim if it denies a female employee a promotion because of actual or presumed caregiving responsibilities. In one case, a court allowed an employee to proceed to trial with her failure-to-promote sex discrimination lawsuit—even though the employer had promoted a female coworker to the job in question (Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009)).
The evidence of discrimination included comments by the interviewers about the plaintiff’s four young children. The employer pointed out that the promoted employee also had children, but the court noted the two children were older and there was no evidence the employer knew about the children at the time of the promotion decision.
Adverse employment actions based on caregiving responsibilities or family relationships can also violate the ADA. The ADA expressly prohibits employers from taking an adverse action against an employee based on the employee’s association with an individual whose disability is known to the employer.
If an employer’s assumptions or stereotyping about the negative effect of an employee’s caregiving responsibilities (actual or perceived) on the employee’s job performance result in an adverse action against the employee, that’s a violation of the ADA.
Although Title VII and the ADA do not expressly prohibit caregiver discrimination, employers should remember that they may have specific obligations to caregivers under laws like the Family and Medical Leave Act (FMLA) and state or local laws.
Many cities and counties prohibit discrimination on the basis of familial or parental status including Atlanta, Georgia; Columbus, Ohio; Madison, Wisconsin; Cook County and the city of Chicago, Illinois; and three counties in southern New York. Also, under Executive Order 13152, federal government employers are prohibited from discriminating against applicants or employees based on their status as a parent.
To avoid discrimination claims based on parenthood, familial status, or caregiving responsibilities related to protected categories, employers should make sure similarly situated employees are treated equally under the employer’s policies—e.g., same leave policies apply equally to male and female employees.
Employers should also be sure their antiharassment policies are communicated clearly to all employees and that all employees are familiar with procedures for reporting harassment
By Joan Farrell, JD, Senior Legal Editor HR.BLR.COM