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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, December 21, 2008

Discrimination Against Parents With Special Needs Children

The Boston Globe ran a very interesting and important article entitled A Parental Juggling Job on December 14, 2008.  It is about how difficult it is for parents to work full time and take care of special needs children at the same time. The article points out that many parents careers suffer because they need to take time off, sometimes at unpredicatable times. The article describes the legal protection parents have as follows:

Legally, parents caring for children with disabilities have some protection against discrimination. Amid rising claims by working caregivers in general, the federal Equal Employment Opportunity Commission issued guidelines last year to detail how laws banning discrimination based on sex or race protect such workers. For instance, a new mother who is placed into less desirable work because her boss assumes she is less serious about her career post-birth is protected against sex-based stereotyping under Title VII of the Civil Rights Act of 1964.

As well, the Americans with Disabilities Act outlaws discrimination against caregivers to the disabled, although it doesn't require that employers accommodate them by changing schedules or job duties, as is mandated for workers with disabilities.

If any one is aware of any case law on this issue, please let me know. Frankly, I think these cases are under reported and under litigated because no one cares. I also believe that aside from the FMLA, which provides extremely limited protection (12 weeks of unpaid leave), parents of special need children have very little protection under the law. I am actually not sure that the article is correct in implying that placing a mother in a less desirable job because the mother has a disabled child is unlawful. Unfortunately, I believe it is lawful. What is unlawful is if the employer makes sterotypical assumtions because of an employees sex.

Mitchell H. Rubinstein 

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While I won't opine on how much protection the law gives to parents of special needs children, the ADA association clause does protect parents of disabled children from being moved to less desirable jobs simply because of their association with a disabled person. (Maggie Jackson also got it right when she said that no accommodation is required, however.) The ADA provides better protection than Title VII in this situation, but there are scenarios in which Title VII can come into play as well.

At WorkLife Law, we maintain a database of family responsibilities discrimination cases, including ADA association cases. You're right that there aren't many cases (and you're also right that they are under-reported; we have a hotline for employees who believe they may have been discriminated against, and we talk with many people who do not file any charges or complaints. We also work with employers to inform them about the laws in this area and to help with compliance, and we find that many are unaware of the association clause of the ADA).

Here are some cases from our database: McGrenaghan v. St. Denis School, 979 F. Supp. 323 (E.D. Pa. 1997); Miller v. CBC Companies, Inc., 908 F.Supp. 1054 (D.N.H. 1995); Padilla v Buffalo State, 958 F.Supp. 124 (W.D.N.Y. 1997). We also discuss ADA association clause cases in our treatise, WorkLife Law's Guide to Family Responsibilities Discrimination.

Posted by: Cynthia Calvert | Dec 23, 2008 7:34:05 PM

To whom it may concern:
I am the mother of three chidlren that have physical, cognitive and medical disabilities. Recently my daughter had complications from a routine surgery that caused her to become septic from several different type of infections.Her stomache was perforated during surgery and cause her to get ecoli, strep and many other infections in her blood stream. She ended up having to have emergency surgery and was put in the PICU in critical condition, until yesterday she was on a ventilator. My husbands employer is telling him that they are going to fire him if he is not back at work on July 27th he will be fired. If he comes back to work he will be written up for missing work even though up to this point only his vacation days have been used. They denied him family leave because his company does not have 50 employees in 75 miles, although, they have companys all over the east coast. Do you have any suggestions that could help us?
Thank You,
Jill Fox
(304)483-5943

Posted by: jill fox | Jul 26, 2009 10:28:12 PM

I cannot tell you how happy I was to finally find an article that outlines the struggles that parents with disabled children face in the workplace. I have a two-year struggle with this issue and have never found much information on this topic. Until now.

I would like to share my story with you and see if you would be interested in learning more and possible share this story with your readers and followers.

I am a former employee of a non-profit agency that receives federal and state funding to provide services to the disability community in the northern portion of Pennsylvania. The funding received by this organization was through the US Department of Education, Division of Special Education and Rehabilitative Services (RSA) as well as through the US Department of Justice (DOJ) to provide education and advocacy for the Americans with Disabilities Act (ADA). So, to my surprise, I would have never imagined that the volunteer non-profit board of directors of this agency would conduct themselves in such a manner as to violate the ADA through it’s own hiring and promotion practices. The story I am writing to you about is about myself and my fight against this organization.

I was a ten-year employee of a disability-rights organization. During my employment, I was serving as the interim executive director for over three years while the original executive director made preparations for his retirement. During this time, the agency’s board of directors made the decision to appoint me interim executive director with the understanding that I would assume the role as the official executive director upon his retirement. However, a life decision that I made in the third year of my holding the position of interim executive director became a topic of concern for my employer and they decided to move into a different direction.

Up to this point, I was the single father of two special needs children, adopting them through the Pennsylvania Statewide Adoption Network. Both of my sons were autistic and one was also diagnosed with Cerebral Palsy and later re-diagnosed with Muscular Dystrophy. In 2007, I received a State Award from the Governor of Pennsylvania and the Secretary of Public Welfare for my efforts in adoption special needs children.

I had received much praise form my employer up to this point regarding my efforts with special needs children. However, Upon their discovery of my intent to adopt a third special needs child, they began to question me and others regarding their concern over my abilities to continue to perform effectively in the agency and if they believed that I could handle the added responsibility of being the agency’s new executive director. They even went as far as to raise these questions to me during my interview for the position and openly asked me in front of the entire board of directors. At which time, one board member expressed her concern over the line of questioning, considering the agency was designed to protect the rights of disabled individuals and those protected classes under the Americans with Disabilities Act (including the association clause of the ADA regarding employees with known associations). This board member even resigned over the matter, indicating her outrage over the way I was treated during the decision to appoint a new executive director.

After my being notified of the board’s decision to deny me the promotion, they informed me that they had concerns over my abilities to balance my personal obligations with my duties with the organization. As a result of their concerns, they decided to give the promotion to another employee of the agency. I reminded them that I had received the full endorsement of the agency to take over as the executive director as well as having received over ten years of outstanding evaluations with no questions ever being raised over my abilities to balance personal and professional life. I also reminded them of their commitment to follow and enforce the ADA and that their decision was a direct violation of the ADA. I was informed by the board that it would be very hard for me to prove my allegations and that it would be “an uphill struggle”. However, upon my seeking the guidance of an attorney, the attorney informed my employer that he was going to represent me and file a complaint with the EEOC. At this time, my employer demoted me, reduced my salary by over 18% and began to degrade me in front of other agency employees. Upon the new executive director taking over, my employment was terminated. The next day, the new executive director held a religious ceremony and conducted an “exorcism” to “rid the office of my evil spirits.” This was held during open office hours and all the agency employees were forced to participate. Several employees actually began to cry and express their discontent over these activities. However, the new executive director informed them that if they did not work as part of the new team, there would be no place for them in the agency. To clarify, the new executive director was actually a former subordinate of mine while I was serving as the Interim Executive Director for the agency. Upon receiving the position of Executive Director, this was how she conducted herself toward me.


Then to make matters worse, two of my sons were receiving services form this agency as well. Upon my termination, I was informed that I was no longer permitted to enter the agency for any reason, including to receive services for my children. At this time, I was instructed to make alternative arrangements to receive services for my children through the agency by mail, telephone or by meeting at alternative locations. Apparantely, due to the wonderful reputation this organization had up to this point (partly through my efforts) the agencies I complained to over the treatment I received did not take action. I was labeled as a disgruntled employee and my complaints were never taken seriously.

My struggle has been going on for two years at this point but I have never given up on this. Especially when I read articles, such as your. (Thank god for Google!).

I have been through the one-year process through the EEOC and have been given approval to move into Federal Court to be heard. It is an uphill battle but one that I intent to take.

Posted by: John R. Hettinger, MSW | Oct 29, 2009 7:30:59 AM

I am a full time student at a University. I am the primary care giver to my daughter who has a disability that causes her to become ill on a fairly regular basis. The University allows it's professors to remove a student from the class with a failing grade if they miss 3-6 classes the entire semester (4 months). Does the law protect parents such as myself in these circumstances? I understand the employer is paying their employee's and even they have to follow laws on the treatment of parents. Shouldn't parents who are PAYING colleges or Universities be protected as well?

Posted by: Jane | Mar 9, 2012 2:33:18 PM

My husband is currently employed in PA for a municipality. They also do not have 50 employees. We adopted 2 special needs children in July 2010. He was an employee of the township at that time and received many praises and good evaluations until recently. A foster child in our home pushed me down and I hurt my right hand and arm in January. I also have RA and my injury is not healing well. He has had to help with some appointments, that normally I would have done. He had sick time and vacation time to use and has never taken time off without using time that he had coming. We may have to give up doing foster care and was in the process of adopting another special needs teenager. I have no worker's comp. through foster care and we have additional bills do to my injury and have no recourse other than to sue to the foster child (she is 19 years old) which we don't want to do. In a recent write-up from the township they even brought up the time he needed to take off for court appearances that were required for the foster children. We don't know what to do or where to turn, if anyone has any suggestions, please contact me at my email address or (717) 642-8470. We've always tried to do the right thing and hope we can get this resolved. Thanks! Amy Harbaugh

Posted by: Amy Harbaugh | Apr 1, 2012 1:48:31 PM

Parents of special-need children are definately discriminated against by some "bully" managers/supervisors.

I was terminated from a hospital which is a government entity. I had been there for 6 years; had previously worked under 2 other previous managers, had had no problems, and had never had a write up until in 2008, when a new manager came on board.

Immediately thereafter, this new manager created a hostile work environment within the department. Several employees had been to HR to complain--nothing was done.

I have a Down Syndrome son, and have always had a FMLA on file (which I hardly used--I used the FMLA one time when my son was sick under the new manager's jurisdiction--at that time I received a bad mark for my absence). When I started to work at this hospital, I fully explained circumstances. [My husband and I had always tried to adjust our work schedules to accommodate our son's need.]

The new manager kept changing my work schedule to where we couldn't accommodate our son's needs. One of my supervisors had also informed me that the new manager had said that I could no longer take any holidays off. The last holiday which I was allowed to take, under her jurisdiction, was Thanksgiving of 2008. [It is very hard to find a sitter to stay with an adult mentally challenged individual, especially during special holidays, like Thanksgiving & Christmas/everyone is out of town or want to be with their families.] The other 2 girls who worked with me were more than willing to help me out/even made it known to the manager, so that I could leave in time to take care of our son's needs as I was doing from the inception of my employment.

Even in my yearly evaluation, the new manager gave me low ratings with various comments such as: "X is inflexible to schedule changes and uses personal reasons to excuse herself."

Another girl & I were terminated together. There were 3 of us who worked within the immediate section of the department, and we had been instructed by our supervisor to come up with some ideas which would be beneficial to our department. Furthermore, we had received an email that a department meeting was to be held in the near future. It was Memorial Day of 2011, the hospital had only scheduled a skeleton crew of doctors, nurses and hospital staff to work; therefore, our services were not in normal demand--we were not getting pages. Nonetheless, we called the various departments within the hospital to see if they needed our services--our services were not being needed. The 3 of us thought it was a good time to work on the assigned project given to us by our supervisor. All 3 of us came up with ideas, I typed up an email to supervisor stipulating that these ideas were for her consideration and that we had all 3 had worked on this together. The other two girls suggested that I type all of our initials at the bottom of the email since we had all participated. Nothing was heard from the manager or the supervisor until several weeks later, each one of the three of us was called into the office -- one by one at a time. Each of us was handed an identical Notice of Corrective Action which stated: "Failure to follow procedures, avoiding work, inattention to duties and disrespect towards supervisor." [All of those assertions are lies!] However, out of the 3 of us, only 2 of us were fired.

The other girl and I appealed the case, went before the hospital's Grievance Committee for a hearing. The manager presented her case, we presented our case, and the Grievance Committee Members voted in our favor; thus, winning the case! [We asked to be made whole--paying us for the time we had been off--reinstate us to our positions--have this sticken off our employment record(s). HR declined the recommendation of the Committee.

We followed the protocol of the Employee Manual--wrote a letter to Chief Operating Office (sent certified-return receipt requested) asking for an appt. to meet with him--never answered us; however, within 2 weeks of having received our letter, the hospital 'fired' the manager who had fired us! Then, a letter was sent to the CEO--he never answered.

All this took time as we had to wait for the Hearing Committee to submit their decision to HR, wait for the hospital to advise us of the Committee's findings, wait for the notification from HR at which time they declined the recommendation, wait on the COO and the CEO for a response/didn't get a response from either one.

The other girl & I had aready gone to the Labor Relations Board--they said that we had a case; however, because it was a government entity, they couldn't do anything.

This manager had changed my work schedule several times; thus, getting me home later & later to where it was very stressful/impossible in my husband and myself re-arranging our work schedules to take care of our son. She had also not allowed me to take holidays off when it was very hard to get a sitter to keep my adult son. These are just a few of the harassments, I was put through by this new manager--the supervisor had also sprayed hand sanitizer on the back of my slacks, as well as the back of the other girl's (who was fired)slack as we were sitting at our desks--floor was dampen, I fell down and broke my foot. I called Manager to report this fall. She told me that she and supervisor would fill out the OJI Report--they turned report several days later--denied the fall--WC was denied--I had to pay for all my medical bills, was off work some 8 weeks, thus, using up all my PTO days and sick days during my time off.

I'm trying to find a lawyer. Any advice as far as case law to protect such situation?

Any information would be greatly appreciated. Please respond to caballero0608@gmail.com


Posted by: Laura C. McFarling | Apr 27, 2012 3:49:52 PM

Hi, I have a different scenario. I am a teacher who is trying to get a job closer to home. I have 3 special needs children that raise on my own. I have on occasion fought for my children's rights with their IEP's. I have always wanted to work at my local school district long befoer my children were born. Now they all attend this district and it is a good one. Every year, I take a teacher test online for the district and I score very well to get a first interview. On line I am a number applicant but when the interview starts they match a number to a person. I have interviewed the last 3 years there and have not gotten a 2nd interview but in past years went all the way to a 3rd interview. This year I noticed that I have been interviewing with the same exact principals for 3 years and some of these people had unpleasant IEP meetings with me. There are 5 interview teams every year but I get the same person EVERY time with the same result no 2nd interview. That's a 20 percent chance for 3 yrs in row! I called and asked what I could do to improve my interview skills and this person said "you didn't do anything wrong, you did a good job other candidate were just more qualified and answered the questions better." I am higly qualified and respected at my current school district and they are very pleased with my performance. I can't prove it but I believe that this principal has it out for me. I feel like I'm being punished for fighting for what was right for my child. Is there anything I can do?

Posted by: Elizabeth | Aug 7, 2012 8:19:19 PM

i have a question, my son is hearing impaired and currently attends a special school to meet his learning needs. I was approved my a boss that is no longer with the company to have an adjusted schedule of 915 am - 615 pm in order to take him to this school. I was sure to clear this prior to enrollment. I maintained this schedule for over 6 months. After said boss was no longer with the company they told me it was no longer ok for me to take my son to school if it will not allow me to be there at 9am that i will need to find an alternate ride for him. So far i have not been able to find someone to take my son to school, and i am fearful that they are going to fire me due to being late. is there anything i can do

Posted by: tami | Nov 6, 2012 3:20:22 PM

I am super struggling with this... I actually thought that FMLA can help big time and could protect a mom if they need to change their schedule to care for a child with a disability?

Posted by: Casey Domina | May 20, 2014 1:43:47 PM

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