Family and Care Giver Discrimination, Harassment and Discharge

posted by Donna Ballman  |  Aug 13, 2009 4:46 PM [EST]  |  applies to Florida

Family responsibility discrimination is an emerging area of discrimination law. Although no specific law designates a family care giver as a protected class, a number of laws protect people with family responsibilities from discrimination, discharge, harassment and retaliation. 

Laws protecting Family Care Givers

Sex discrimination and Sexual stereotyping

An employer will violate Title VII and Florida Chapter 760 sex discrimination laws by assuming that a woman, because she is a woman:

• will be the primary family caregiver;
• will not devote enough time to her job because of care giving demands;
• is or will become pregnant;
• will not return to work after a pregnancy; or
  
• will not commit to a long term career.
  

Similarly, an employer who assumes that a man granted primary custody of children will be too distracted to do is job engages in "sexual stereotyping." Discharges, discrimination or harassment based on sexual stereotypes is unlawful sex discrimination. Retaliating against an employee who opposes sexual stereotyping is unlawful as well.

FMLA Intermittent Leave

Employees who work at a site covered by the FMLA who are eligible for FMLA leave can take intermittent leave to care for themselves or their immediate family members. The absences covered by the FMLA include the need to:

• care for a family member with a serious health condition;
• the birth or adoption of a child;
• one's own serious health condition, if it prevents the ability to perform the job;
• assist a military servicemember with military exigencies or injuries.

FMLA leave may be taken intermittenly and on an as needed basis. Employers are entitled to additional medical certification that the serious health condition makes intermittent, rather than continuous, leave necessary.

Pregnancy Discrimination

Pregnancy discrimination is a form of sex discrimination. As such, an employer cannot discharge or otherwise discriminate against an employee:

• because she is pregnant,
  
• because of assumptions about her pregnancy or her parenting choices; or
  
• because of childbirth.
  

A pregnant employee is generally not entitled to an accommodation or light duty, even if the employee's physician recommends the accommodation or light duty. If an employer offers similar accommodations or light duty to non-pregnant employees, however, they cannot treat pregnant employees differently by denying the pregnant employee light duty.  In addition, insurance must cover pregnancy, and benefits for leaves must be the same as for non-pregnancy leaves.

Continuous FMLA leave

Employees can use family and medical leave on a continuous basis, in addition to using the intermittent FMLA leave discussed above. Employees can use continuous FMLA leave for pregnancy related complications that are "serious health conditions," to care for family members and for other family related needs covered by the FMLA, as long as the employees are otherwise eligible for FMLA and working for FMLA covered employers. 

FMLA allows employees to be away from work for up to 12 weeks without losing their job. At the end of the employees' leaves of 12 weeks or less, their employers must restore them to their prior position, or one substantially equivalent to it.

Marital status discrimination

Florida law protects employees from discrimination on the basis of their marital status. An employer thus cannot favor married employees over unmarried employees.  Fl.St. 760.10. This law does not, however, prohibit nepotism, which is discrimination in favor of family members, unless the family favoritism falls along gender lines (that is, male family members are treated better than female family members).

Laws Against Harassment

Harassment based on:

• stereotypical views of caregivers,
  
• pregnancy,
  
• employees who take FMLA leave or
  
• caregiving status categories
  

is also illegal. In most cases involving co-worker harassment, and some cases involving supervisory harassment that does not include a loss of wages or benefits, an employee must report the harassment to the employer to allow the employer an opportunity to stop it

Family and Caregiving Conclusion

No specific law prohibits discrimination against employees who have family care giving responsibilities. Laws prohibiting sex discrimination can protect employees from some forms of stereotyping. Pregnancy discrimination is a form of sex discrimination. Consequently, pregancy discrimination is unlawful as well.

The right to be away from work without losing a job comes from the Family and Medical Leave Act, but only for covered employers and eligible employees. Finally, in Florida, employees cannot be discharged, harassed or demoted because they are either married or unmarried.

This article was posted by Donna M. Ballman, P.A., 4801 S. University Dr., Ste. 3010, Ft. Lauderdale, FL  33328;  Licensed to practice in Florida.

This article is for informational purposes only and is not intended as legal advice or to establish an attorney-client relationship.

External Links

Links to external sites with additional information about this topic.

• Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.
• Questions and Answers about EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities
• Florida Statutes Chapter 760 Discrimination in the Treatment of Persons; Minority Representation
  

posted by Donna Ballman  |  Aug 13, 2009 4:46 PM [EST]  |  applies to Florida