50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 36: “Family Status” Is Not a Protected Class (…or is it?)

by Hirschfeld Kraemer LLP
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Family status discrimination (“FSD”) is an increasingly recognized term that refers to discrimination against employees on the basis of their caregiving responsibilities, including those that actively participate in providing care for their children, aging parents, or ill or disabled family members.  Despite an increase in the number of FSD cases, as reported by the Center for WorkLife Law at UC Hastings, no federal statute—and very few states, for that matter—expressly prohibit discrimination based on family status.

Though the Civil Rights Act of 1968 is recognized for outlawing discrimination on the basis of having children, there was—and still is—no federal analogue that prohibits discrimination on the basis of family status, parental or otherwise, in the employment context.  Members of Congress have attempted to remedy this disparity several times in recent years, most recently through the Family and Medical Leave Enhancement Act of 2014 (H.R. 3999), which would amend, among other things, the federal Family and Medical Leave Act of 1993 (“FMLA”) to prohibit employers from discriminating against, terminating or otherwise imposing any adverse action on employees who take parental involvement leave to attend their children’s and grandchildren’s educational and extracurricular activities, or non-emergency family medical and caregiver leave

Whatever merits such legislation would provide, passage of such family-friendly legislation at the federal level remains a distant prospect; previous versions of the bill have died in committee, including a 2009 version introduced in the Democratic-controlled House of Representatives, and no comparable legislation is currently pending in the U.S. Senate.  By contrast, the federal government prohibits employment discrimination against federal employees on the basis of their “status as a parent” (Executive Order 13152), while many municipalities prohibit employment discrimination based on “familial status.”  Moreover, several states have passed legislation prohibiting employment discrimination on the basis of “parenthood” (Alaska Statute § 18.80.220) or “family responsibilities” (District of Columbia Human Rights Act, §2-1401.01 et seq.), or prohibiting employers from requesting or requiring information regarding “familial responsibilities” (Connecticut General Statute § 46(a) et seq.), though notably, California lawmakers have failed three times in the last seven years to add California to that list.

In the absence of a broad federal scheme expressly prohibiting FSD, the EEOC issued related enforcement guidance on the topic in 2007, which was followed up in 2009 by a report providing best practices for employers to minimize FSD complaints.  Such guidance, however, is not mandatory, and so FSD suits are often brought under the existing patchwork of claims under federal and state anti-discrimination and leave laws that nonetheless leave gaps.  For example, a mother who is denied a promotion because she is told that she “has young kids” may sue for sex discrimination under Title VII and, in California, under the Fair Employment and Housing Act (FEHA), but might have less success in a suit where she was subjected to adverse action for taking leave to take care of her uncle suffering from dementia.  As another example, a man who is fired for taking time off to care for his sick daughter may sue under the federal Family and Medical Leave Act and, in California, under the California Family Rights Act, but will have a more challenging time disputing his termination for leaving work early—with or without notice—for attending parent—teacher conferences or Back-to-School Night.  Given the increasing number of households in which both parents work, it is clear that FSD cases will continue to be filed, even in the absence of express federal prohibitions preventing such behavior.

 

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