VIRGINIA CLE
August 1, 2007
WHAT TO EXPECT WHEN YOUR EMPLOYEE IS EXPECTING
Proving and Defending Pregnancy, Childbirth and Parental Leave Claims
Employee Perspective
Harris D. Butler, III
Butler, Williams & Skilling, P.C.
100 Shockoe Slip, Fourth Floor
Richmond, Virginia 23219
www.butlerwilliams.com
hbutler@butlerwilliams.com
Overview
Since women entered the workforce in significant numbers they have faced subtle
forms of differential treatment with the underlying premise that women were less
productive or valuable employees than men. This was reflected in pay rates,
assignments and promotional opportunities (reserving the key positions for the male
‘bread winners’). Female workers have been expected to endure not only lesser pay
and benefits, but sexual harassment as a term or condition of simply receiving a pay
check for a day’s work. Stereotypes regarding female workers’ abilities and
limitations have persisted - none, perhaps, more universal than when the employee
requires a temporary leave from work due to pregnancy or attempts to return to
work after childbirth with an infant in the home.
The federal constitution and some state constitutions’ equivalents to the U.S.
CONST. Fifth and Fourteenth Amendments’ due process/equal protection clauses
have long provided state and federal employees gender based job protections. Title
VII to the 1964 Civil Rights Act first provided private sector employees protection
against gender-based employment discrimination. The protections were specifically
extended to pregnancy in the Pregnancy Discrimination Act of 1978. 1990 brought
us the Americans with Disabilities Act which prohibits discrimination against both
employees with disabilities and disabilities of those with whom the employee has a
relationship or association, such as a parent, child or spouse. In 1993 the Family
and Medical Leave Act provided an overlay of job protection upon return from
periods of family or medical leave entitlements.1
Leave issues surrounding pregnancy and parental care remain in the forefront.
EEOC filings on parental leave and family care issues are on the rise. Low wage
earner caregivers face particular problems associated with stereotyping that deny
them needed jobs. EEOC has noted that this form of discrimination falls
1
See EEOC Fact Sheet, The Family and Medical Leave Act, the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964 (1995), http://www.eeoc.gov/policy/docs/fmalada.html.
1
particularly hard on women of color, who often serve as not only the primary
breadwinner, but the primary caregiver, for young and old family members.
In May, 2007, the EEOC published its Guidance on Work/Family Balance issues
entitled Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities2. This Guidance does not create new protections, but explains the
existing protections for mothers and parents dealing with family leave issues
provided by the intersections of various federal laws. EEOC Commissioner Stuart
J. Ishimaru issued a statement regarding EEOC’s recent effort: “This guidance
recognizes the connection between parenthood, especially motherhood, and
employment discrimination. An employer may violate Title VII when it takes
actions or limits opportunities for employees because of beliefs that the employer
has about mothers and caregivers that are linked to sex.”
Our culture has also changed. Colleges are graduating qualified women in greater
quantities than their male peers. The stereotypical 1950’s image of the ‘perfect
employee’ – the workaholic white male - has changed. Companies realize the value
of work and personal life balance. According to the US Census Bureau, more
women are returning to work after childbirth. Dads are now more involved with
child rearing and family life. It is not a rarity for mom to return to work while dad
stays home. As the internet and e-commerce explode, the ‘9 to 5’ format is
becoming a thing of the past. E-commuting, home offices and ‘24/7’ access by
PDA’s, laptops, wifi connections, and electronic advancements allow work to occur
outside the four corners of the office.
Logically and rationally, an employee who is committed to getting the job done can
do so in far more ways than before. Women (and men) struggle to have it all –
work time, family time and free time. Attitudes are difficult to change, however,
and Congress has seen fit to provide certain statutory restrictions on an employer’s
ability to use ‘at-will’ employment to penalize women or caregivers for their
protected status. The new battleground involves how work in the 21st Century can
get beyond the stereotypes of the past and balance an employer’s legitimate job
needs against an employee’s rights to a tend to medical issues, raise a family and
balance life outside the office.
I.
Pregnancy and Parental Leave Issues and Employment Protections
A.
Issues Range Run the Gamut From Application/Hire through Discharge
and include:
• Screening at application/hire for pregnancy/child-bearing years;
• Selective treatment based on stereotyping;
2
www.eeoc.gov/policy/docs/caregiving.html; see also the question and answer fact sheet at
http://www.eeoc.gov/policy/docs/qanda_caregiving.html.
2
• Selective application of leave policies/practices;
• Forcing leave through fetal protection policies;
• ‘Sex-plus’ discrimination – treatment of unwed moms,
morality/appearance issues;
• Maternity leave;
• Seniority and job/work credit issues during periods of leave;
• ‘Mommy-track’ treatment/practices;
• When may pregnancy/family care issues legitimately support
termination?
• What are so closely related to pregnancy and childbirth to be protected
– what about elective procedures related to infertility/fertility or
abortion?
• Creative uses of the blend of the FMLA, ADA and Title VII;
• And practically speaking, how do you demonstrate employer
knowledge of pregnancy based medically related conditions?
B.
The EEOC’s recent Guidance outlines an intersection of Title VII, ADA
and FMLA and identified the following issues:
• Treating male caregivers more favorably than female caregivers::
denying women with young children an employment opportunity
that is available to men with young children.
• Sex-based stereotyping of working women:
• Reassigning a woman to less desirable projects based on the
assumption that, as a new mother, she will be less committed to
her job.
• Reducing a female employee’s workload after she assumes full-time
care of her niece and nephew based on the assumption that, as a
female caregiver, she will not want to work overtime.
• Subjective decisionmaking: Lowering subjective evaluations of a
female employee’s work performance after she becomes the
primary caregiver of her grandchildren, despite the absence of an
actual decline in work performance.
3
• Assumptions about pregnant workers: Limiting a pregnant worker’s
job duties based on pregnancy-related stereotypes.
• Discrimination against working fathers: Denying a male caregiver
leave to care for an infant under circumstances where such leave
would be granted to a female caregiver.
• Discrimination against women of color: Reassigning a Latina worker
to a lower-paying position after she becomes pregnant.
• Stereotyping based on association with an individual with a disability:
Refusing to hire a worker who is a single parent of a child with a
disability based on the assumption that caregiving
responsibilities will make the worker unreliable.
• Hostile work environment affecting caregivers:
• Subjecting a female worker to severe or pervasive harassment
because she is a mother of young children;
• Subjecting a female worker to severe or pervasive harassment
because she is pregnant or has taken maternity leave; and
• Subjecting a worker to severe or pervasive harassment because his
wife has a disability.
C.
Title VII of the Civil Rights Act of 1964 (“Title VII”)
1.
42 U.S.C. § 2000e is the primary anti-discrimination statute
prohibiting discrimination against employees or applicants due to
race, color, religion, sex, or national origin. It was dramatically
revised by the Civil Rights Act of 1991, which amended the Act
to allow for jury trials. Compensatory and punitive damages
relief were also added. Selective or disparate treatment issues
involving less favorable treatment of women are actionable
under Title VII.
2.
This includes sex-based stereotyping of females3; sex based
stereotyping of female caregivers, assumptions of availability
based on gender and caregiving; less favorable treatment as
compared to other male employees generally, and less favorable
treatment as compared to male caregivers. It may also include
3
See also stereotypes rejected by EEOC as a bona fide occupational qualifications (“BFOQ”) at 29
C.F.R. § 1604.2(a)(1)(ii): men are less capable than women of assembling intricate equipment; women
are less capable of aggressive salesmanship.
4
the creation of a hostile environment based on one’s gender or
race – and, as set out in the new EEOC Guidance, may be result
from sex or race based hostility linked to caregiving
responsibilities in violation of Title VII.
2.
In addition to prohibiting the most common form of
discrimination, known as disparate treatment, Title VII also
prohibits discrimination due to facially neutral job requirements
or regulations that have a disproportionate impact upon a
protected group of employees. If a job requirement or regulation
is determined to have a disproportionate impact on a protected
group, it is unlawful unless the employer can demonstrate that
the challenged practice is job-related for the specific position in
question and is consistent with business necessity. See Scherr v.
Woodland Sch. Community Consol. Dist. No. 50, 867 F.2d 974
(7th Cir. 1988), reh. denied (leave policies had disparate impact
on women, rejecting argument that PDA did not allow disparate
impact theory).
3.
EEOC interpreted this to mean protection for pregnancy related
disabilities. 29 C.F.R. § 1604.10(b) (1972) states:
(b) Disabilities caused or contributed to by
pregnancy, miscarriage, abortion, childbirth, and
recovery therefrom are, for all job-related
purposes, temporary disabilities and should be
treated as such under any health or temporary
disability insurance or sick leave plan available in
connection with employment.
Written and
unwritten employment policies and practices
involving matters such as commencement and
duration of leave, the availability of extensions,
the accrual of seniority and other benefits and
privileges, reinstatement, and payment under any
health or temporary or disability insurance or sick
leave plan, formal or informal, shall be applied to
disability due to pregnancy or childbirth on the
same terms and conditions as they are applied to
other temporary disabilities.
4.
However, in a 1976 ruling involving a class based challenge to
an employer’s disability plan excluding pregnancy from nonoccupational sickness coverage, the Supreme Court determined
that pregnancy was distinguishable from Title VII’s gender
protections. General Electric Co. v. Gilbert, 429 U.S. 125
(1976), reh’g denied, 429 U.S. 1079 (1977). The Pregnancy
5
Discrimination Act legislatively corrected this to include such
protection within Title VII.
D.
5.
EEOC charges must be filed within 300 days of the
discriminatory event. Each discrete act of disparate treatment
discrimination (pay, promotion, leave denial, selective treatment,
demotion, termination or other terms or conditions of
employment) should be included in a charge, or included in an
amended charge, to avoid defenses that claims have not been
properly preserved. See Amtrack v. Morgan, 536 U.S. 101
(2002) (each discrete act of discrimination must be supported by
a timely charge of discrimination); Ledbetter v. Goodyear Tire
and Rubber Co., 2007 U.S. Lexis 6295 (May 29, 2007) (Title VII
gender compensation claim which merely challenged the present
effects of past discrimination denied as not timely filed because
EEOC charge was not filed at time of discriminatory act). Suit
must be filed within 90 days of EEOC’s issuance of a Right to
Sue letter.
6.
Retaliation may include any action a reasonable employee would
find materially adverse or that might have “dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern & Santa Fe Railway Co. v.
White, 126 S. Ct. 2405, 2415 (2006).
7.
Damage awards are subject to damage caps based on the size of
the employer, to a maximum of $300,000 for compensatory and
punitive damages (exclusive of front and back pay and benefits
and attorneys fees/costs) for employers of over 500 employees
(the applicable cap for employers of 15-100 employees is
$50,000).
The Pregnancy Discrimination Act of 1978 (“PDA”)4.
1.
In reaction to the 1976 Gilbert ruling, Congress enacted an
amendment to Title VII. The passage of the 1978 Pregnancy
Discrimination Act, 42 U.S.C. 2000e(k) effectively overruled
Gilbert. The PDA prohibits discrimination in treatment in regard
to benefits and any differential treatment in all aspects of
employment based on the condition of pregnancy.
2.
Pregnancy, childbirth and related medical conditions may not be
used to exclude women from the work force or to unreasonably
4
EEOC enacted Guidelines related to pregnancy and childbirth at 29 C.F.R. § 1604.10 with 37
Questions and Answers to provide further interpretation, attached. See “Questions and Answers on the
Pregnancy Discrimination Act” 29 C.F.R. Part 1604 Appendix (1978).
6
restrict the terms or conditions of their employment in
compensation, retention, advancement or benefits. 42 U.S.C. §
2000e(k) states:
(k) The terms “because of sex” or “on the basis of
sex” include, but are not limited to, because or on
the basis of pregnancy, childbirth, or related
medical conditions; and women affected by
pregnancy, childbirth, or related medical conditions
shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected
but similar in their ability or inability to work, and
nothing in section 703(h) of this title shall be
interpreted to permit otherwise.
(note- the text later excepts out health insurance
benefits for abortion absent life endangerment to the
mother or medical complications arising from
abortion.)
E.
3.
Employers may not treat women differently because they are, or
may become, pregnant. Disability related to pregnancy must be
treated the same as non-pregnancy related temporary disabilities.
3.
Benefit plans cannot deny contraceptive coverage if similar
prescriptions are covered. Commission Decision on Coverage of
Contraception (December 14, 2000).5
4.
In that the Act is an amendment to Title VII, Title VII timelines
for filing EEOC charges and damage caps apply to the PDA.
The Americans With Disabilities Act of 1990 (“ADA”)6
1.
The ADA, 42 U.S.C. § 12201, et seq., provides protections to
qualified individuals with disabilities as well as those who have
relationships with disabled persons. This includes spouses,
children and parents and the caregiving responsibilities
associated with such situations.
2.
In addition to the rare pregnancy related disability, disparate
treatment based on stereotypical assumptions of an employee’s
ability to satisfactorily perform job duties while also providing
5
See http://www.eeoc.gov/docs/decision-contraception.html
See EEOC’s Questions and Answers About the Association Provision of the ADA at
http://www.eeoc.gov/facts/association_ada.html.
6
7
care to a disabled spouse or child would fall within this
protection.
F.
The Family and Medical Leave Act of 1993 (“FMLA”)7
1.
The FMLA, 29 U.S.C. § 2601 et seq. provides employees with
one year’s service (or at least 1250 hours during the previous 12
months) of employers with 50 or more employees of up to 12
weeks unpaid leave during a one-year period for: birth or
adoption of a child; care of a son, daughter, spouse or parent of
employee who has a serious medical condition; or a serious
health condition that renders the employee incapable of
performing the functions of his or her position.
2.
An employee returning from FMLA leave is entitled to be placed
in the same job or equivalent position, with the same pay,
benefits, and working conditions (including privileges,
prerequisites, and status). It must involve the same or
substantially similar duties and responsibilities.
3.
Certain “key” or “highly compensated” employees can be denied
job restoration if the employer can demonstrate that it would
cause “substantial and grievous economic injury” to operations.
4.
The FMLA is similar to the statutory platform used for the Fair
Labor Standards Act (“FLSA”) and Age Discrimination in
Employment Act (:ADEA”). Relief is based on back pay and
benefits and an equal liquidated damages amount upon a willful
showing. A two year statute of limitations applies; three years
for willful acts. EEOC does not have jurisdiction over FMLA
claims.
5.
Retaliation is expressly prohibited for any conduct taken in
response to an employee’s exercise of FMLA rights or
opposition to unlawful acts under the FMLA. 29 U.S.C. § 2615;
Cline v Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)
(construing the anti-retaliation provisions of the FMLA, 29
U.S.C. § 2615(a)(2), as governed by Title VII standards).
6.
In Nevada Dept. of Human Resources v. Hibbs, 528 U.S. 721
(2003), the Supreme Court held that Congress effectively
abrogated states’ Eleventh Amendment immunity to monetary
7
See “Compliance Assistance – Family and Medical Leave Act” at http://www.dol.gov/esa/whd/fmla/
(U. S. Dept. of Labor web site).
8
damage awards in enacting the FMLA by making the statute’s
family-leave provision specifically applicable to state employers.
G.
Constitutional Protections to Public Employees: Equal Protection Clause
of the Fourteenth Amendment
1. The Equal Protection clause of the Fourteenth Amendment prohibits
government from treating one differently based on gender – the
equal protection of the law.
2.
Gender-based harassment violates the Equal Protection Clause of
the Fourteenth Amendment. In Davis v. Passman, 442 U.S. 228,
234-35 (1979) the Court declared that individuals have a
constitutional right under the Equal Protection Clause to be free
from sex discrimination in public employment; See also Harris
v. Forklift Systems, Inc., 114 S. Ct. 367, 371 (1993) (Title VII
application as to sexually hostile environment); Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (same
sex harassment).
3.
The Fourth Circuit has adopted Title VII standards for genderbased discrimination Equal Protection analyses. Beardsley v.
Webb, 30 F.3d 524 (4th Cir. 1994).
4.
42 U.S.C. § 1983 is the statutory vehicle for damages claims and
other relief against government and individual government
officials acting unconstitutionally (Section 1983 claims). For
governmental employers, this is a second level of exposure for
gender based conduct which violates Title VII. EEOC does not
have jurisdiction over these claims so there is no charge filing
requirement. The Eleventh Amendment bars damages claims
against the state itself but suit may be brought directly against
either the official or municipality or other political subdivision.
5.
Section 1983 allows for unlimited compensatory damages, and
punitive damages are available (except from local governmental
entities), as well as back pay, front pay, interest, attorneys’ fees,
and other equitable relief, such as reinstatement, and the right to
a jury trial.
6.
The limitations period is borrowed from the most analogous state
limitations period. Virginia Section 1983 claims have a two year
9
limitation period, which is much longer than the 300 day period
applicable to filing EEOC charges on Title VII claims.
7.
H.
II.
Municipalities and local governmental units cannot be sued on a
respondeat superior theory for unconstitutional acts of their
employees, but may be held liable for constitutional deprivations
visited pursuant to a custom, pattern, practice or policy. Monell
v. Dept. of Social Services, 436 U.S. 658 (1978).
The Virginia Human Rights Act
1.
The little used Virginia Human Rights Act, Va. Code §§ 2.1-714
to 2.1-725, prohibits discrimination on the basis of race, color,
religion, national origin, sex, age, marital status, or disability.
2.
The statute only applies to employers of 6-14 employees and has
a limited private right of action to enforce its provisions. Claims
must be filed within 180 days of the alleged discriminatory act.
The Virginia Act coordinates and generally defers to federal antidiscrimination laws for larger employers.
Special Pregnancy and Parental Leave Issues
A.
Can the Employer Force Leave or Terminate Due to Pregnancy?
1.
Generally, the pregnant employee is free to continue working
unless there is some demonstrable inability to perform “major
functions” of the position. She should not be treated any
differently than similarly situated non-pregnant employees
regarding hire, employment status, leave or benefits. 29 C.F.R.
Part 1604 App.
2.
Such disparate treatment may not be justified under “benevolent”
employer practices designed to protect the pregnant employee.
Id. Employer attempts to dictate that pregnant employees may
not work during the pregnancy, or forfeit employment
opportunities due to the pregnancy, have not fared well in the
courts.
3.
Forced Leave Impermissible: Mandatory maternity leave
unrelated to actual ability to work is impermissible. See
Cleveland Bd. of Educ. v. LaFleur; Cohen v. Chesterfield County
Sch. Bd., 414 U.S. 632 (1974) (companion cases decided under
Due Process Clause of Fourteenth Amendment).
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4.
Termination and Rehire Not Permitted. An employer policy
requiring termination of pregnant employees, but allowing for
their rehire after childbirth without loss of seniority, still violated
the PDA. Even though the employer actually rehired most of the
terminated women after childbirth, this was not a supportable
‘no-harm, no-foul’ application. EEOC v. Hacienda Hotel, 881 F.
2d 1504 (9th Cir. 1989).
5.
“Fetal protection” policies – Employer policies affecting the
working conditions of pregnant employees based on "fetal
protection" considerations may also violate Title VII. In United
Auto Workers International Union, UAW v. Johnson Controls,
Inc., 499 U.S. 187 (1991), the Court held that a gender-based
fetal protection policy excluding fertile women from all jobs
involving exposure to lead (including exclusion from jobs which
had the potential for promotion to higher risk positions) violated
Title VII and were not defensible under either business necessity
or BFOQ defenses; see EEOC Policy Statement on Reproductive
and Fetal Hazards Under Title VII (Oct. 3, 1998); EEOC Policy
Guide on UAW v. Johnson Controls (issued June 29, 1991).
6.
Stereotyping as to perceived abilities of the pregnant employee:
EEOC v. Old Dominion Sec. Corp., 41 FEP 612 (E.D. Va. 1986),
aff’d in part and remanded in part, 816 F.2d 671 (4th Cir. 1987)
held that an employee’s discharge from security duties during her
9th month of pregnancy violated the PDA. The employer’s
asserted defense that she could no longer perform job due to
pregnancy had no medical support.
7.
Employer or Customer Perceptions: See EEOC .v. Red Baron
Steak Houses, 47 FEP 49 (N.D. Cal. 1988) in which the Court
held that a violation of the PDA where an employee was fired
because it “did not look right for a pregnant woman to be waiting
on tables.”
8.
“Sex-plus” discrimination is involved where the employer
imposes neutral criteria on members of one sex but not on
members of the other sex. Philips v. Martin Marietta Corp., 400
U.S. 592, 91 S. Ct. 496, 27 L.Ed.2d 613 (1971) (employer who
refused to hire women with preschool children while hiring men
with preschool children violated Title VII).
a.
‘Sex plus’ analysis has also been applied in the unwed
mother scenario (‘sex plus’ unmarried status). Ponton v.
11
Newport News Sch. Bd., 632 F. Supp. 1056 (E.D. Va.
1986) (district violated single pregnant teacher’s Title VII
rights and constitutional right to privacy by giving her 3
options: (1) get married, (2) take a leave of absence, or
(3) resign).
b.
B.
See also Andrews v. Drew Mun. Separate Sch. Dist., 507
F.d 611 (5th Cir. 1975), cert. dismissed, 425 U.S. 559
(1976) (school district policy of firing unwed mothers
violated Due Process and Equal Protection Clauses of
Fourteenth Amendment; noting impossibility of applying
such a standard to unwed fathers).
9.
Return to Work: EEOC Guidelines require employers to hold
jobs open for women on pregnancy disability leave if it does so
for other short-term disabilities. EEOC Q & A #9: “Q. Must an
employer hold open the job of an employee who is absent on
leave because she is temporarily disabled by pregnancy-related
conditions? A: Unless the employee on leave has informed the
employer that she does not intend to return to work, her job must
be held open for her return on the same basis as jobs are held
open for employees on sick or disability leave for other reasons.”
29 C.F.R. Part 1604 Appendix.
10.
Failure to Hire/Rehire: An employer may not discriminate on the
basis of the likelihood that an employee may become pregnant.
Kocak v. Community Health Partners, 400 F.3d 466 (6th Cir.
2005) (employer violated Title VII by denying employment to
employee who had quit because of a prior pregnancy; the fact
that employee was not pregnant at time of application for rehire
did not bar claim.)
Can an Employer Alter Employment Terms, Conditions or Benefits to
Pregnant Employees?
1.
Selective Light Duty Denial. In Carrington v. Frank, 58 FEP
1796 (D. Neb. 1989) a pregnant female employee denied light
duty established a prima facie PDA violation by comparison to
similarly situated male injured in an off duty occurrence who
requested and received light duty; but see Daugherty v. Genesis
Health Ventures of Salisbury, Inc., 316 F.Supp. 2d 262 (D. Md.
2004) (employer not obligated to provide pregnant employee
with light-duty when it did not provide light-duty to employees
with physical restrictions except for work related injuries.)
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2.
Arbitrary Time Limits: An employer may not set fixed time
limits for maternity leave that are not placed on other disability
leaves. Maddox v. Grandview Care Center, 780 F.2d 987 (11th
Cir. 1986, aff’g 607 F. Supp 1404 (M.D. Ga. 1985) (3 month
limit on maternity leave not imposed on other disability leaves
on a doctor’s recommendation violates Title VII on its face).
3.
Marital Status: Benefits may not be based on marital status: See
EEOC Guidelines, Question 13 “Q: May an employer limit
disability benefits for pregnancy-related conditions to married
employees? A. No”.
4.
Seniority Accrual: Seniority for employees on maternity leave
runs from the date of hire, not from date of return to work post
pregnancy. EEOC Dec. No. 71-413, 3 FEP 233 (Nov. 5, 1970);
Nashville Ga Co. v. Satty, 434 U.S. 136 (1977) (policy denying
accumulated seniority credit to employees for period of
maternity leave had disparate impact on women in violation of
Title VII).
5.
Medically Related Conditions – Pregnancy related medical
conditions are protected. These include infertility procedures
and abortion related complications. Byrd v. Lakeshore Hosp., 30
F.3d 1380 (11th Cir. 1994) (pregnant employee terminated after
took time off for pregnancy related medical condition, including
physician prescribed bedrest after two near miscarriages, need
not show comparator where sick leave benefits were made
available through sick leave policy but pregnancy related
medical leaves were excluded. “[I]t is a violation of the PDA for
an employer to deny a pregnant employee the benefits commonly
afforded temporarily disabled workers in similar positions, or to
discharge a pregnant employee for using those benefits.” 30 F.3d
at 1383-84.
6.
Abortion - Most cases and the regulations support Title VII
protection. See Turic v. Holland Hospitality, Inc., 842 F. Supp.
971 (W.D. Mich. 1994), aff’d in pertinent part, 85 F. 3d 1211
(6th Cir. 1996), reh’g en banc denied (July 24, 1996) (citing
Johnson Controls, the legislative history of the PDA and EEOC
Guidelines as clearly indicating that a woman’s right to have an
abortion is protected under Title VII).
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C.
Can the Employer discriminate against the Father?
1.
2.
III.
Daddy discrimination and “reverse” pregnancy claims –Title VII
is violated when an employer terminates a husband for his wife’s
pregnancy.
a.
In Nicol v. Imagematrix, Inc., 773 F. Supp. 802 (E.D. Va.
1991) a husband and wife, both Vice Presidents
employed by the same employer, were terminated on the
same day they told the President they were expecting a
child. The husband alleged discrimination based on his
wife’s pregnancy and on the basis of his sex. Finding
Title VII standing for the husband, the court likened the
situation to the termination of a white spouse
discriminated against for marriage to a black spouse – the
fact that the act was directed to a white employee did not
change the fact that the discrimination was still based on
the plaintiff’s race - even though the ‘root animus’ was an
anti-black bias. The Court held that the PDA protected
the father in this situation.
b.
The PDA also protects discrimination against males in
the provision of pregnancy related benefits. See Newport
News Shipbuilding and Drydock Co. v. EEOC, 462 U.S.
669 (1983) (PDA prevents against discrimination in the
benefits provided to male employees’ dependents).
Paternity leave – the FMLA protects parental leave whether the
father or mother makes the leave request. While Title VII does
not require employers to provide child care leave to fathers (no
protected classification is involved), if offered it must be equally
offered to men and women.
The May, 2007 EEOC Enforcement Guidance: Unlawful Disparate
Treatment of Workers with Caregiving Responsibilities
A.
Weaving Work/Family Issues and Caregiving Responsibilities into
Existing Discrimination Law
1.
Recognition of Title VII, PDA, FMLA and ADA applications to
working mothers, single mothers, and caregivers for young and
elderly family members.
2.
Socio-economic realities that pregnant women and women of
color often bear the brunt of stereotyped thinking as to how the
woman can both perform job functions and care for others such
14
that Title VII race/gender, disability or pregnancy protections
may reach to the non-protected ‘caregiver’ status.
B.
3.
In an extensively footnoted Enforcement Guidance supported by
literature, research studies and case law, EEOC provides
examples of how female caregivers can suffer unlawful Title VII
disparate treatment when compared to male caregivers, when
suffering unlawful gender based stereotyping and assumptions
about future caregiving responsibilities and regarding pregnancy
discrimination.
4.
The Guidance also discusses discrimination against males,
discrimination against women of color, stereotyping of employee
caregivers for disabled persons with whom the employee has a
relationship in violation of the ADA, hostile work environment
liability for those targeted for protected status (race/gender/ADA)
related to caregiving responsibilities and retaliation protections.
5.
Mixed motive analysis applies to gender ‘caregiver’ claims.
a.
Under mixed motive analysis, a violation is shown even
where a challenged employment decision was motivated
both by a protected characteristic (such as sex) and a
legitimate business reason.
b.
Where an employer can demonstrate that it would have
reached the same decision in the absence of the illegal
factor, the remedy for the violation may not include
reinstatement, back pay or damages. Declaratory relief,
non-reinstatement/ back pay injunctive relief and
attorneys fees are available. Obviously, this would be a
pyrrhic victory for the employee.
Gender based Caregiver Liability
1.
Employers may not deny opportunities based on assumptions
that caregiving responsibilities will limit or interfere with job
responsibilities.
a.
Employers may not rely on stereotypes of traditional
gender roles for married women, new mothers or
assumptions regarding future caregiving, childcare
responsibilities, or the likelihood that an employee will
become
pregnant
in
considering
employment
opportunities.
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b.
It would violate Title VII and/or the PDA to assume that
new mothers were less committed to their job or would
work fewer hours. It would violate Title VII to deny part
time or flexible work schedules to women based on sex
stereotyped speculation as to how a “homemaker” would
approach the job rather than based on specific work
performance.
2.
Discrimination against only a sub-group of the protected class, it
is still actionable. Discrimination against working mothers
violates Title VII even if the employer does not discriminate
against childless women.
3.
Even ‘benevolent’ stereotyping, believed to be in the employee’s
best interest, is improper. Denial of a promotional opportunity
based on the assumption that a working mother would not
relocate to another city is illegal.
4.
Caregiving does not provide a heightened status or protection – it
is not a protected classification itself. Actual declines in work
performance, even where due to caregiving responsibilities, are
not protected against employer action.
5.
Subjective Assessments of Work Performance May Not Legally
Be Influenced by Stereotyping
• Stereotyped perceptions that part time workers or caregiver
employees are less dedicated may find their way to
evaluations of performance.
6.
•
Such employees may be both thought of ‘bad mothers’ for
committing time to work away from family and ‘bad
workers’ for devoting time away from work to families.
•
Danger signs include abrupt changes in assessment that
correlate to pregnancy or assumption of caregiver
responsibilities, subjective assessments unaccompanied by
objective criteria and changes in duties/assignments not
readily explained by nondiscriminatory reasons.
EEOC’s examples of sex-based Title VII violations include:
• Interview questions to female (but not to male) caregivers
about whether they were married, had young children,
childcare and other caregiving responsibilities;
• Derogatory remarks by decisionmakers regarding pregnancy,
working mothers or female caregivers;
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•
•
•
•
•
•
•
C.
D.
Selectively negative treatment toward women soon after
learning of their pregnancies;
Selectively less favorable treatment, in the absence of
declining work performance, toward women after
assuming caregiving responsibilities;
Steering of women with caregiver responsibilities to less
pretigious or lower-paying jobs;
Selectively favorable treatment given males with caregiver
responsibilities as compared to women;
Statistical disparities against pregnant workers or female
caregivers;
Employer deviations from policy in application to caregivers;
and
Pretextual, incredible reasons given for challenged actions.
Pregnancy Specific Issues
1.
Like Title VII, stereotyped assumptions about an employee’s
commitment to work or ability to perform job functions are
impermissible, even where the employer believes it is acting in
the employee’s best interest.
2.
Inquiries regarding pregnancy, followed by adverse job action,
are presumed violative of the PDA.
3.
Pregnancy testing may violate the medical testing prohibitions of
the ADA.
4.
Pregnant workers should be treated the same as similarly
situated non-pregnant workers whose job performance is
restricted because of conditions other than pregnancy.
Discrimination Against Male Caregivers
1.
Just as traditional female gender roles may be used to deny
women employment opportunities, traditional male roles may be
discriminatorily applied to men.
2.
Gender stereotyping can result in disparate treatment against
male employees. Men viewed a ‘bread winners’ and not
caregivers may receive different treatment, harassment or less
favorable leave or benefits than offered to female employees in
violation of Title VII. Fathers working part time may be viewed
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as ‘bad fathers’ by not providing for his family through full time
work or ‘bad workers’ for lack of commitment to the job.
3.
E.
F.
Granting childcare leave to females, but not to males would
violate Title VII. (This is to be distinguished from pregnancy
and childbirth related medical leave – which may be provided
only to the pregnant woman.)
Discrimination Against Women of Color
1.
Recognizing that race or national origin undercurrents may be
reflected in how stereotypes are applied, the Guidance discusses
how women of color may face caregiver based discrimination.
2.
An African American or Latino working mother or female
caregiver may be provided less favorable treatment than her
White counterpart.
3.
The combination of race, gender and/or national origin bias and
caregiver stereotyping assumptions can lead to Title VII, PDA,
ADA and/or FMLA violations.
Caregiver Stereotyping Discrimination in Violation of the ADA
1.
An individual employee may have disabilities qualifying for
ADA protection, although the normal pregnancy would not
qualify.
2.
However, caregivers may suffer discrimination for their
association with one who is disabled. The ADA prohibits
discrimination based on disability of one with whom the worker
has a relationship or association, such as a child, spouse or
parent.
3.
Stereotyping based on assumptions of an employee’s ability to
satisfactorily while also providing care to a relative or other
individual with a disability could violate the ADA.
Conclusion
The recent EEOC Guidance only reaffirms that creative use of the intersection
of the various employment discrimination laws may, though not formally,
approach a sub-protected class for those providing care to family members.
While the culture has changed, old stereotypes are hard to break. In advising
employees, be alert to subtle forms of selective stereotyping violating gender,
race, disability or family/medical leave protections.
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