Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, July 29, 2007

Family-Leave Values

The July 29, 2007, New York Times Magazine published an interesting article by Eyal Press entitled "Family-Leave Values" which is well worth reading. In this lengthly and comprehensive article, the author details real life employment problems that many parents have experienced because of their family responsibilities. As the article states:

Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare — in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.

But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities — becoming pregnant, needing to care for a sick child or relative — has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

This article highlights the limits of the FMLA and the ADA and perhaps might lead some states to enact additional pro-family legislation. It is surely needed.

In May 2007, the EEOC issued enforcement guidelines Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities which researchers may also want to consult.

Hat Tip: Workplace Prof Blog where Professor Jeff Hirsch offers some additional insights about this important subject.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2007/07/family-leave-va.html

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