FAMILY CARE COMMITMENT DISCRIMINATION: BRIDGING THE GAP BETWEEN WORK AND FAMILY

FAMILY COURT REVIEW, Vol. 46 No. 3, July 2008 558–570© 2008 Association of Family and Conciliation Courts

Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-24451744-1617© Association of Family and Conciliation Courts, 2008XXXOriginal Articles

Taylor/FAMILY CARE COMMITMENT DISCRIMINATIONFAMILY COURT REVIEW

FAMILY CARE COMMITMENT DISCRIMINATION: BRIDGING THE GAP BETWEEN WORK AND FAMILY

Lindsay Taylor

This Note discusses the pervasive problem of employment discrimination based on family responsibilities, orfamily care commitment discrimination. Employees with family care commitments often find themselves beingpulled in opposing directions—between work and family. When an employee is forced to choose work, for financialreasons, over family, his or her family ends up suffering. The current state and federal statutes aimed atemployment discrimination are insufficient to deal with family care commitment discrimination. This Noteproposes a change to the current legislation and explains how this change will protect employees and families,while causing employers to internalize externalities by adopting more family-friendly policies.

Keywords:

employment discrimination

;

discrimination

;

family care commitment

;

family responsibilities

;

families

;

Title VII

INTRODUCTION

Bruce had just won a bitter custody battle. He was elated. Finally, after a long-foughtlawsuit, he had custody of his beloved children. Although he was successful in his lawsuit,there were more troubles ahead for Bruce. He realized that he would have to find adequatechild care while he was at work. He spoke with his supervisor about needing additionaltime off to find a suitable arrangement for his children. His supervisor seemed agreeable.However, after being an hour tardy for work on the following two days, Bruce was fired.When he asked for an explanation, he was told “children should be with their mother” and“if you hadn’t won custody of your kids, you’d still have a job.” The issue here is whetherBruce was unlawfully discriminated against. Currently, the answer to that question dependson the jurisdiction and statute under which the suit is brought.

The case on which the above story is based is

McCormick v. Hi-Tech Plating

.

1

In thatcase, the Superior Court of Massachusetts granted summary judgment for the defendantemployer, despite the fact that the employer forced Bruce to choose between his familycommitments and his job.

2

Mr. McCormick had claimed gender discrimination underMassachusetts’s Unlawful Discrimination Statute

3

and had asserted that his employer hadviolated the federal Family and Medical Leave Act.

4

The court held that the Massachusettsstatute did not protect against employment discrimination because of parenthood.

5

Bruce’s situation is just one example of how people can be discriminated against becauseof family status. Single mothers and fathers and households in which all adults work oftenface the terrible choice of deciding between a healthy family life and job stability. Thereare also cases in which adults have to stay at home to take care of ill or disabled familymembers, such as spouses or elderly parents, and like Bruce, they face terrible choicesleading to undesirable consequences. The discrimination workers face when jugglingfamily and work comes in many forms in both professional and nonprofessional settings,and unfortunately there are few remedies available to alleviate this problem.

Taylor/FAMILY CARE COMMITMENT DISCRIMINATION 559

In order to address this dilemma, federal and state employment antidiscriminationstatutes should be amended to incorporate the term “family status” to alleviate pressureplaced on employees choosing between work and family. Additionally, federal andstate legislatures should add provisions requiring employers to inform employees of theirfederal and state rights prohibiting discrimination based on their need to care for childrenor relatives to their statutes. These statutes would compel employers to adopt more flexiblework schedules.

6

Flexibility in work schedules allows employees to cover for each other andto choose to work longer hours when they are able. Conversely, employers also reap somebenefits, including a happier and more productive workforce.

7

This Note will examine the different forms of family care commitment discrimination—the discrimination that occurs when family members are forced to choose between caringfor their families and maintaining their jobs—the statutes already in place to prohibit suchdiscrimination, and the need to add “family status” to these statutes if not already present.Part I of this Note will explore family care commitment discrimination in its various forms.Part II will examine the current status of federal and state laws, restraints on employees,common employer policies, and the problems causing them to be ineffective and insuffi-cient. Part III will look at the ways in which these problems can be addressed via proposedstatutory provisions and the rationale behind them. Part IV concludes with thoughts andcomments regarding proposed legislation aimed at curtailing family care commitmentdiscrimination and the consequences of enacting such legislation.

I. FAMILY CARE COMMITMENT DISCRIMINATION

Family care commitment discrimination occurs when an employee who has familyresponsibilities is discriminated against in the workplace because of those responsibilities.This type of discrimination affects all aspects of family life and comes in many forms.Parents are most commonly discriminated against, but it also occurs with grandparents whohave child-care responsibilities and with adults who have elderly parents or ill spouses forwhom to care.

8

The discrimination is sometimes blatant,

9

while at other times is very subtleand worked into seemingly nondiscriminatory policies.

10

The most prevalent form of family care commitment discrimination occurs whenmothers and fathers are not able to spend time on necessary child-care responsibilitiesdue to work.

11

For example, ill children, whether the illness is long term, short term, oremergency related, often need parents to be able to take care of them, frequently duringwork hours, and, unfortunately, these parents are unable to take time off from work.

12

Amore common problem facing parents is everyday care.

13

One study asserts that in everystate the cost of daycare for a one-year-old is higher than the tuition at that state’s publicuniversity.

14

Young children need supervision, while children of all ages often need helpwith homework and projects as well as emotional support, thus forcing parents to miss workat times.

15

In some instances of family care commitment discrimination, grandparents bear theburden of taking care of their young grandchildren while the children’s parents work.

16

Another aspect of family care commitment discrimination occurs when children are takingcare of their elderly parents. Jody Heymann estimates that one in four families take care ofelderly relatives,

17

which can pull members of those families away from their jobs. A finalexample of family commitment is spousal responsibility. One spouse will sometimes needto take time off of work to be with his or her spouse who is ill or disabled.

18

560 FAMILY COURT REVIEW

Discrimination affecting family care commitments occurs in several forms. Some com-panies set hiring profiles that favor men and women who do not desire to have children.

19

There are instances where a person exercising rights to spend time with her or his familyis demoted or not promoted even though she or he is equally or more qualified than theperson receiving the promotion.

20

Often nonprofessionals are given fewer hours to work ifthey need to take time off for family issues.

21

Discrimination also occurs through the use of no-fault and at-will termination,

22

methods employed by several companies. No-fault firing is when an employer can fire anemployee without giving a reason. Similarly, at-will termination is when either theemployer or the employee can terminate the working contract without reason or notice.

23

These types of terminations disadvantage employees with family responsibilities becausethe companies do not question why the person was tardy or absent, and often parents withchild-care emergencies bear the brunt of these policies by getting disciplined.

24

Family care commitment discrimination is such a pervasive problem because of itsbreadth. In 70% of American households, all adults work.

25

Moreover, 20% of families haveat least one child who has special needs, who often needs more constant care than otherchildren.

26

With so many parents working at least part-time jobs, and the high cost ofchild care, many families have taken to a strategy called tag-teaming.

27

Tag-teaming is whenone parent works day shifts while the other works night shifts or a comparable configurationwhich ensures their children have full-time parental care.

28

One in four families withchildren tag-team to handle child-care responsibilities.

29

However, tag-teaming can failwhen family-related emergencies or mandatory overtime at work occur.

30

Such situationsstretch beyond the limits imposed on couples who depend on tag-teaming for child-careneeds and those imposed by their employers.

31

Reducing this type of discrimination is important to family and society as a whole.According to Jody Heymann, sending a sick child to daycare not only exacerbates thechild’s own illness, but will likely spread the illness to other children.

32

Further, sheasserts that, when family members are left home alone while sick, they are less likely toget medical treatment.

33

Yet, with working families being discriminated against in theworkplace, parents have little choice but to send sick children to daycare or leave other familymembers at home, while they go to work.

II. THE CURRENT EMPLOYMENT SYSTEM AND ITS INSUFFICIENT COVERAGE OF FAMILY CARE COMMITMENT DISCRIMINATION

Despite the statutes enacted by the federal and state legislatures, workers are not alwaysable to sensibly balance work and family responsibilities. Some of the work–family prob-lems facing employees are rooted in the statutes. Other problems are brought on by difficultiesin the worker–employer relationship. This section seeks to explore each of these concerns.

A. COMMON EMPLOYMENT POLICIES CONTRIBUTING TO FAMILY CARE COMMITMENT DISCRIMINATION

There are several practices commonly used in companies that lead to problems foremployees with families. Some of these are seemingly neutral policies that happen todisadvantage employees with family care commitments, while others focus on employeeswith family responsibilities and discriminate on that basis.


Many companies require employees to do mandatory overtime, without advancednotice.

34

These overtime policies make it difficult to balance family care commitments,particularly for single mothers, divorced fathers, and tag-team couples,

35

because itadversely affects their set child-care schedules.

36

No-fault and at-will firing has also hadadverse effects on families because employers can disregard any reasons for tardiness orabsenteeism.

37

Often the employees will have reasons for missing or being late to work,such as trouble finding a replacement for the child- or elder-care upon which the employeenormally depends, or family emergencies.

38

Most companies do not use flex-time orjob-sharing when creating schedules.

39

By not using these techniques, companies limitthe amount of flexibility employees have with schedules, resulting in cases of noncoveredtardiness and absentness, which ultimately ends in discipline or discharge for manyemployees with family responsibilities.

40

The availability of policies such as flex-time and job-sharing rebuts one of the reasonsemployers give for opposing legislation protecting family status. Employers fear that theywill have to deal with an influx of special requests from employees who need off of workfor family time. To address this issue, one need only look to European employers who arenow working under laws that require company flexibility. These laws allow employees tomake reasonable requests to reduce or increase the amount of hours they are working andrequire employers to seriously consider such requests. According to Ariane Hegewisch, asmall percentage of employees made requests to shift from their regular workday to reducedor increased hours.

41

She also found that implementing the new policies was not costly andthe majority of the requests made were not unreasonable.

42

Moreover, the legislation proposed in this Note could benefit employers by loweringlong-term costs. A survey of 29 American firms who employ flexible hours conducive toemployees’ family responsibilities shows that such measures ameliorate human capital,raise business outcomes, improve financial performance, and provide for a higher retentionrate.

43

Moreover, a brief look at companies based in Europe that adopted work-time flexibilityshow that the number of special requests was manageable and the requests themselves werereasonable.

44

Lack of flex-time and job-sharing produces the same negative results in professionalsettings,

i.e.

generally, jobs requiring a degree or extensive skill set, but it is less commonto see a professional discharged for few incidents of tardiness or absenteeism. However,employees who often miss work for family reasons are overlooked for promotions whileemployees with similar records continue to climb the ladder of success.

45

Also, somecompanies actually demote employees who miss work because of family reasons.

46

Menand women with family care commitments will sometimes be given inflexible work hoursthat are not conducive to their family responsibilities, forcing them to choose between jobstability and their families.

47

Professional settings are also more likely to produce hiringprofiles that eliminate pregnant women, women who want to have children, and potentialemployees who have school-aged children from the hiring pool.

48

Joan Williams points outthat “[m]atching one’s workplace to one’s workforce, not surprisingly, increases businesses’effectiveness and improves their bottom line.”

49

She further points out that this is not doneout of the goodness of the employer’s heart, but rather to increase profits by allowingflexibility for employees via flextime, job sharing, and compressed workweeks. Somebusinesses have adopted such policies voluntarily and there have been positive responsesby workers, customers, and management.

50

The use of flexibility in the workplace can increase profits and marginalize costs byallowing employees to choose when they want to work and finding their own coverage


when emergency situations arise.

51

This type of flexibility lets employers yield more hoursout of the same number of employees, maintain full staff during vacations, illnesses, andemergencies, and get higher productivity.

52

Moreover, employers are likely to have higherretention rates,

53

leading to fewer new hires and lower amounts of capital spent on training.The use of these flexible work schedules also works to decrease the amounts of absenteeismand tardiness that employers may worry about. Employees are more likely to cover shiftsof coworkers because they would expect their coworkers to do the same for them in similarsituations. Flexibility allows for these types of problems without causing the companyto suffer because other workers are more willing to cover for the absent employee.

54

B. CURRENT LAW GOVERNING EMPLOYMENT DISCRIMINATION

The federal government has enacted legislation that can be construed to protect againstsome instances of family care commitment discrimination. Most states have enactedstatutes modeled after federal laws, and states have gone a step further by adopting lawsbroader than those enacted by the federal government.

55

These legislative steps are insufficienteven though current laws are somewhat successful in a litigation context. Also, when lookingat arbitrations, a form of dispute resolution differing from courtroom litigation that is some-times mandatory under union rules, it becomes apparent that some employees simply donot know about their rights.

56

1. Federal Legislation

Some plaintiffs in family care commitment discrimination cases have been successful inrelying on various federal and state statutes and state common law;

57

however, there areproblems with relying on any of these statutes. Federal statutes that have proven to befruitful for plaintiffs include Title VII of the Civil Rights Act of 1964,

58

the Equal Pay Act(“EPA”),

59

the Family and Medical Leave Act (“FMLA”),

60

and the Americans withDisabilities Act (“ADA”).

61

Title VII enables workers to sue for sex-based discriminationin the work place.

62

The EPA allows employees to sue their employers for arbitrarily dis-criminating via pay rates.

63

The FMLA allows those with family members who are seriouslyill or who have a newborn or newly adopted child to take time off of work withoutrepercussions.

64

Finally, the ADA enables employees to take time off of work to care forfamily members suffering from disabilities.

65

The problems with the current federallegislation can be described by two non-exclusive characteristics: 1) those that providemore protection for women than men, even though men need the same protection; and 2)those that do not provide enough protection for all types of workers.

Title VII has been the most useful statute for workers bringing suits against employersfor family care commitment discrimination, but its effectiveness is limited. The problemscoming out of this statute mostly concern men. Most suits brought under Title VII arebrought by women, and for good reason—policies enacted by companies discriminateagainst women far more than men.

66

For example, Joan Williams and Nancy Segal point outthat “female plaintiffs have been successful in cases concerning promotions and terminationswhere the employer’s decision was based on stereotypical views that motherhood renderswomen less capable and less suited to perform competitively in the workplace than men andwomen without children.”

67

In the words of one court, leave policies have “a drastic effecton women employees of childbearing age, an impact no male would ever encounter.”

68

Thissex-based problem is exacerbated by the job-type problem. A large dilemma for many men


is that Title VII has been interpreted to not include independent contractors, whooverwhelmingly tend to be men.

69

Therefore, an individual of the predominantly male forceof independent contractors who is discriminated against does not have a cause of actionunder Title VII. When looking at these two types of problems, one can see why women havebeen more successful than men in bringing claims under Title VII. Only stunning cases ofsex-based discrimination brought by men under Title VII have been successful.

70

The Equal Pay Act (“EPA”) disproportionately favors women when it comes to familycare commitment discrimination; thus, the problem with this statute is sex-based.Overwhelmingly, women are paid less than men who perform comparative jobs, makingthem the prime plaintiffs in EPA-based cases.

71

The EPA is useful to remedy wage disparitiesbetween full- and part-time employees who perform the same duties.

72

Often workers withheavy family responsibilities will take part-time work and get paid less for performing thesame job.

73

Thus, in cases where the employee is being paid less as a part-time employeefor performing the same job as a higher paid full-time employee, that employee has a rightto protect himself or herself, though it should be noted that generally women face thisproblem.

74

The Americans with Disabilities Act (“ADA”) has been somewhat useful for employeeswho have caregiving responsibilities for someone with a disability. This statute is verylimited in the relief it can grant caregivers, especially since it restricts claims to thoseinvolving a disabled person.

75

What is more, the Supreme Court has held that monetaryrelief cannot be granted against state employers under the ADA.

76

The Family and Medical Leave Act (“FMLA”) is the most helpful federal statute formale victims of family care commitment discrimination. However, even this statute has itslimits—the major limit being of the job requirements. A worker is eligible for relief underthe act only if he or she has accumulated 1250 work hours over 12 months time and worksfor a company with over 50 employees.

77

This definitional restriction removes manyworkers from the protection of this statute. The legislation also restricts the reasons fortaking time off for the following reasons: birth of a child, adoption or foster care of a child,or serious health conditions of the employee, spouse, child, or parent.

78

These restrictionsdo not include basic child-care responsibilities, the most frequent reason that workers needtime off.

79

2. State Law

State legislation protecting workers’ family rights is often broader than statutes enactedby the federal government, thus offering more protection to workers taking time off of workfor family-related reasons.

80

Although there are only a handful of states with statutes aimedspecifically at preventing family care commitment discrimination, they are positiveaugmentations for workers.

81

For example, the District of Columbia has inserted the term“family responsibilities” into its employment discrimination statute.

82

California providesits state employees 40 hours per year to attend school functions for their children.

83

Also,Maryland allows for state employees to have 30 days paid leave for one parent, or twoparents can receive a combined 40 days leave for newborns and newly adopted children.

84

Alaska has inserted the term “parenthood” into its employment discrimination statute.

85

Utah,

86

Maine,

87

Virginia,

88

and California,

89

have made discrimination on the basis ofpregnancy, child birth, or pregnancy-related conditions unlawful. Some plaintiffs have wonfamily care commitment discrimination cases relying on common law, stating that certainjob terminations violate public policy.

90

It has been successfully argued that the state has a


fundamental interest in protecting the family and has an interest in promoting business, andby coupling these two ideas the state should better protect workers with family commitments.

91

Despite the widespread benefit state family care commitment discrimination statutesoffer, only a handful of states have enacted them.

92

While there are some states that havebasic provisions that mimic federal statutes, often they are no more useful than federallegislation, due largely to the fact that they give plaintiffs no further arguments for theircases.

C. PRECONCEPTIONS AND POLICIES LEADING TO FAMILY CARE COMMITMENT DISCRIMINATION

Often, management-creates policies, intentionally or unknowingly, have an adverseeffect on employees with family care commitments. Sometimes these policies are fueledby preconceptions surrounding the roles of men and women when it comes to familyresponsibilities. Unfortunately, it is not uncommon for the employees themselves to rely onthese preconceptions when making decisions concerning work and family life. One of thelargest policy problems with preventing family care commitment discrimination comesfrom employees not being aware of their rights under employment discrimination statutes.

1. The Breakdown of Information between Workers and Employers

Often the biggest problem facing them is simply that workers are not aware of therights they have under state and federal statutes.

93

In one arbitration study, several workersadmitted that they would not have been aware of any of their rights, had they not beenbrought to the workers’ attention by union representatives

after

the incidents leading todiscipline or discharge had occurred.

94

This problem of employers and unions noteducating their employees on the basic rights afforded concerning employment discrimi-nation represents an information asymmetry. Unfortunately, this is only one of manyemployment policies that make

s

it difficult for employees to spend necessary time withtheir families.

2. The Impact of Gender Preconceptions on Family Care Commitment Discrimination

A study of 99 work-family arbitrations showed that men are much less likely to say whythey need time off work when it is for family responsibilities.95 This phenomenon could bedue to myriad reasons encompassing internal and external restraints placed on men.96 Theserestraints make it difficult for men to successfully take off of work for family care com-mitments. Families depending on these working men suffer because there is no one aroundto care for them in times of need.

When a man needs time off to take care of his family members, he may not be forthcomingwith that information in order to protect his reputation, which may be marred by pre-conceptions about women being family caregivers.97 Even when men are forthcoming withinformation on why they need time off, managers often deny the requests, relying on thesepreconceived notions that child-care is a woman’s responsibility,98 despite many men havechild-care responsibilities. This type of situation often forces men to take time off of workdespite being told not to because there is no other choice.99

Another part of the stigma surrounding men and family care commitments comes fromthe fact that men’s status as fathers does not enter everyday conversation, leaving men to


believe that fatherhood is simply something that should not be discussed, especially in theprofessional realm.100 Unfortunately, these types of feelings translate into harm to theirfamilies. Unwillingness to explain family-related reasons to employers results in maleemployees having time requests rejected; thus, sick family members are forced to fend forthemselves.

III. CLOSING THE GAP BETWEEN FAMILY AND WORK

Federal and state statutes need to be amended to protect workers from family carecommitment discrimination. First, the term “family status” should be added to statutes thatprohibit employment discrimination on the basis of status. Additionally, statutes should beenacted that force employers to notify their employees of rights under federal and statestatutes aimed at protecting the family orally or via posters. The proposed legislation, byincluding a specific provision protecting family responsibilities, will protect men, women,and all types of workers. These statutes will hopefully spur employers into recognizing theneed to shift traditional company policies in a family-friendly direction. The changes willcreate stronger causes of action for potential plaintiffs. Employers, fearing increased litiga-tion and arbitration costs, will be more likely to internalize the externalities—that is, footthe bill to create policies that are family-friendly in order to avoid higher costs.

A. MODEL STATUTES

The conflict between work and family life has become a heavy burden for employees inthe United States to bear. The government should actively protect families by providinglegislation geared toward specifically prohibiting discrimination based on family status andproviding employees with information regarding their rights under state and federal laws inorder to curtail the problems facing families trying to balance a healthy family life with theneed for continuing employment.

The first step is for legislatures to amend their existing employment discriminationstatutes to include a term such as “family status.” The term would be placed in statutes toaddress the classes of people for whom it is already illegal to discriminate against in theemployment setting. States have based their laws prohibiting employment discrimination onTitle VII, with minor changes. The following is an example of how Title VII would beamended to include the term “family status:”

(a) Employer PracticesIt shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminateagainst any individual with respect to his compensation, terms, conditions, or privileges ofemployment, because of such individual’s race, color, religion, sex, family status, or nationalorigin; or(2) to limit, segregate, or classify his employees or applicants for employment in any waywhich would deprive or tend to deprive any individual of employment opportunities orotherwise adversely affect his status as an employee, because of such individual’s race, color,religion, sex, family status, or national origin.101

Under a statute like this one, family status would become a status that is specificallyprotected, allowing lawsuits to emerge more easily. In the above statute, there are additional


sections that prohibit various forms of discrimination by entities such as labor organizationsand employment agencies.102 Any such provision should also be amended to include “familystatus” or a similar term.

“Family status” should be defined similarly to a “state of being a contributor to thesupport of a person or persons in a dependent relationship,” which is based on the Districtof Columbia’s definition for “family responsibilities.”103 It should be coupled with acomment explaining both obvious and unintuitive examples of family status. For example,obvious family status would be a father’s support of his sick child. An example of a moreelusive case would be a woman on whom a disabled sister is a dependent.

There is still the problem of faulty information communications between employers andemployees, even with the broad coverage offered by this suggested change. To address thisproblem, state and federal legislatures should adopt a statute mandating that employersinform employees of their family care commitment rights under federal statutes and statestatutes. A statute that addresses this issue may be as simplistic as the following:

Employers must inform employees of the rights afforded them under state and federal lawsregarding their family responsibilities,

with “employer” and “employee” taking on the definitions already used in state andfederal unlawful employment discrimination statutes. Such a statute may also be more specificwith respect to which rights are covered.104 Moreover, a more ambitious statute would alsorequire labor organizations to inform their members of any statutory provision that wouldassist the employee in his or her family needs. For example, statutes could require thatemployers post a list of employee rights in a common work area, such as a break room orbathroom or notify employees of their right orally when hired with periodic remindersevery 6 months.

B. RATIONALE BEHIND CHANGING LEGISLATION

Changing the statutes already in place and adding a mandatory information statute willstrengthen family care commitment discrimination causes of action, causing employers toconsider more family-friendly policies. There are more cases brought, and more decisionsfavoring plaintiffs, in circuit court regions that have specific family care commitmentdiscrimination statutes than those without such statutes.105 Employers will perceive the risein litigation as a high cost and seek to minimize those costs by changing discriminatorypolicies. Also, the addition of the enforcement clause will give employees the informationneeded to protect themselves against employers who do not conform to family-friendlypolicies. The information on rights and the protected family status will promote a rise inalready increasing numbers of family care commitment discrimination lawsuits. Hopefullythe threat of increasing litigation or actual litigation will spur employers to move away fromtraditional company policies towards policies that are more family-friendly. The end resultwill be one of protecting the family while nurturing healthy business.

IV. CONCLUSION

The legislation proposed in this Note will protect employees facing family-baseddiscrimination. It will allow single mothers and fathers as well as those in households in


which all adults work, to have more time for their families. It will permit parents who wouldhave faced such discrimination to provide a nurturing and emotionally stabilizing environ-ment for children. Workers with family care commitments would no longer have to fearrepercussions if a family-related emergency occurred or if previously established child orelder care fell through at the last minute. Men who were previously restricted in exercisingtheir rights due to internal and external restraints would hopefully feel more free and openabout utilizing the new statutes alongside the existing ones.

The benefits of the proposed legislation will be felt not only by employees with familycare commitments, but also by employers adopting flexible scheduling options. Theemployers will benefit from increased profits, more productive workers, and improvedhuman relations. All employees will profit from their added rights and protections bygaining valuable time with their children and other family members, while reducing stressthat comes from an unstable work environments. Being able to take off of work to tend toill family members without fear of negative repercussions at work will allow workers toproperly care for their dependent family members. Moreover, the dependent familymembers will benefit from the added care and opportunity to see physicians.106 The pro-posed legislation will help build healthy families as well as healthy family relationships.

Recall Bruce from earlier. Had the proposed legislation been enacted in his jurisdiction,perhaps he would have been a successful plaintiff. The addition of the term “family status”in Title VII and his state’s employment discrimination statute would have better protectedBruce from the retaliatory actions of his employer when Bruce needed to find child-carefor his children. “Family status” employment discrimination would have given Brucea better cause of action for his lawsuit, as he could have argued illegal discrimination basedon his need to find adequate child-care.

Better yet, Bruce may not have been fired had the proposed legislation been in place.Knowing the law protected such family-oriented situations, his employer would have beencompelled to be more understanding and flexible with Bruce. Moreover, his employer mayhave adopted company policies, such as flex-time or job-sharing scheduling, in order tointernalize the cost of future litigation, while creating a loyal, happy workforce filled with par-ents like Bruce, who are no longer forced to choose between their jobs and their families.

NOTES

1. 10 Mass.L.Rptr. 229 (Mass. Super. 1999).2. The Superior Court granted summary judgment for the defendant company on counts 1 and 3 of the com-

plaint, alleging unlawful discrimination based on state and federal employment discrimination laws, but deniedsummary judgment on count 2 which was premised on promissory estoppel grounds.

3. Mass. Gen. Laws ch. 151B, § 4(1), which states:

It shall be an unlawful practice:

1. For an employer, by himself or his agent, because of race, color, religious creed, national origin, sex, sexualorientation, which shall not include persons whose sexual orientation involves minor children as the sexobject, genetic information, or ancestry of any individual to refuse to hire or employ or to bar or to dischargefrom employment such individual or to discriminate against such individual in compensation or in terms,conditions or privileges of employment, unless based upon a bona fide occupational qualification.

4. 29 U.S.C. § 2612(a)(1) (1993).5. McCormick, 10 Mass.L.Rptr. 229.6. See infra Part II, A.


7. Id.8. The Healthy Families Act: The Importance of Americans’ Livelihoods, Families, and Health: Hearing on

the Fam. Health Act Before the U.S. Senate Comm. on Health, Educ., Labor, and Pensions, 110th Cong. (2007)(testimony of Jody Heymann, Founding Director, Institute of Health and Social Policy, Harvard University).

9. E.g., openly discriminatory comments relating refusal to promote or hire someone based on his or herfamily status; see McCormick, supra note 1.

10. E.g., Discriminatory hiring policies in which potential employees are denied jobs because they haveschool-aged children; see, Joan Williams & Nancy Segal, The New Glass Ceiling: Mothers and Fathers Sue forDiscrimination (Center for WorkLife Law, 2002) available at http://www.uchastings.edu/site_files/WLL/newglassceiling at 5.

11. Joan C. Williams, One Sick Child Away From Being Fired: When “Opting Out” Is Not an Option (Centerfor WorkLife Law, 2006) available at http://www.uchastings.edu/site_files/WLL/onesickchild.pdf at 13.

12. Id. at 12.13. Id. at 10.14. Jody Heymann, The Widening Gap: Why America’s Working Families are in Jeopardy & What

Can Be Done About It 50 (2000).15. Williams, supra note 11, at 13.16. Id.17. Heymann, supra note 14.18. E.g., Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001).19. Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who are

Discriminated Against on the Job, 26 Harv. Women’s L.J. 77, 109 (2003).20. Id. at 105.21. Williams, supra note 11, at 10.22. No-fault firing is when an employer does not need to give a reason for firing. At-will firing is when either

the employee or employer is free to terminate working status for any reason.23. Terri Martin Kirik, Retaliatory Discharge for Attorney-Employees in Private Practice: To Do or Not To

Do the “Right Thing,” 33 J. Marshall L. Rev. 383, 385 (2000).24. Williams, supra note 11, at 23.25. Id. at 6.26. Id. at 12.27. Id. at 10.28. Id. at 4.29. Eugene Smolensky & Jennifer Appleton Gootman, Working Families and Growing Kids: Caring

for Children and Adolescents (2003) cited in Shelly Waters Boots, The Way We Work: How Children & TheirFamilies Fare in a 21Century Workplace, New American Foundation, Work & Family Program (Dec. 12, 2004),at 12.

30. Williams, supra note 11, at 15.31. Id.32. Heymann, supra note 8.33. Id.34. Williams, supra note 11, at 15; Lonnie Golden and Helene Jorgensen, Economic Policy Institute, Time

After Time—Mandatory overtime in the U.S. economy, http://www.epi.org/content.cfm/briefingpapers_bp120 (lastvisited Feb. 15, 2008).

35. Tag-team couples are those who switch off between work and home so that an adult is home at all times.36. Williams, supra note 11, at 15.37. Id. at 17.38. Id. at 17–18.39. Id. at 25.40. Id. at 26.41. Ariane Hegewisch, Employers and European Flexible Working rights: When the Floodgates Were Opened (Center

for WorkLife Law, 2005), available at http://www.uchastings.edu/site_files/WLL/european_issue_brief_printversion.pdf,at 1.

42. Id. at 2.43. Corporate Voices for Working Families, Business Impacts of Flexibility: An Imperative for Expansion (2005),

available at http://www.cvworkingfamilies.org/downloads/Business%20Impacts%20of%20Flexibility.pdf?CFID=12369758&CFTOKEN=94507108 at 4.

http://www.uchastings.edu/site_files/WLL/newglassceiling

http://www.uchastings.edu/site_files/WLL/onesickchild.pdf

http://www.epi.org/content.cfm/briefingpapers_bp120

http://www.uchastings.edu/site_files/WLL/european_issue_brief_printversion.pdf

http://www.cvworkingfamilies.org/downloads/Business%20Impacts%20of%20Flexibility.pdf?CFID=12369758&CFTOKEN=94507108


44. Hegewisch, supra note 41, at 1.45. Issue Brief: Current Law Prohibits Discrimination Based on Family Responsibilities & Gender Stereotyping

(Center for WorkLife Law 2006) available at, http://www.uchastings.edu/site_files/WLL/IssueBriefFRD.pdf,at 1.

46. See e.g., Vosdingh v. Qwest Dex, Inc., 2005 U.S. Dist. LEXIS 10721 (D. Minn. 2005).47. Issue Brief, supra note 45, at 4.48. Williams & Segal, supra note 10, at 5.49. Id.50. Corporate Voices, supra note 42.51. Id. at 28.52. Id.53. Id. at 9.54. Id. at 13.55. Williams & Segal, supra note 10, at 13.56. Williams, supra note 11, at 20. These rights include those found in collective bargaining agreements,

federal and state statutes, and company policies.57. Williams & Segal., supra note 19, at 77.58. 42 U.S.C. § 2000e et seq (2000). See, e.g., Lust v. Sealy, Inc., 277 F. Supp.2d 973 (W.D. Wis. 2003);

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000).59. 29 U.S.C. § 206(d) (2000). See, Lovell v. BBNT Solutions, 295 F. Supp. 2d 611 (E.D. Va. 2003).60. 29 U.S.C. § 2601 et seq (2000). See, e.g., Schultz v. Advocate Health and Hospitals Corp., 2002 WL

1263983 (N.D.Ill.).61. 42 U.S.C. § 12101 et seq (2000). See, e.g., McGrenaghan v. St. Denis School, 979 F. Supp. 323 (E.D. Pa. 1997).62. 42 U.S.C. § 2000e-2.63. EPA, supra note 59.64. 29 U.S.C. § 2612 (2000).65. 42 U.S.C. § 12112(b)(4) (2000).66. Issue Brief, supra note 45.67. Williams & Segal, supra note 10, at 7.68. Abraham v. Graphic Arts Intern. Union, 660 F.2d 811, 819 (D.C. Cir. 1981).69. See e.g., Spirides v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979).70. E.g., Knussman, supra note 18, 272 F.3d 625 (4th Cir. 2001) (where a male state trooper was informed

that in order to get time off of work to care for his ill child, his wife would have to be dead or in a coma).71. Williams & Segal, supra note 10, at 11.72. Id.73. Id., noting that 30% of workers surveyed had to reduce their work loads by at least one day a week in order

to care for family members.74. Id.75. ADA, supra note 61.76. Bd. Of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001).77. 29 U.S.C. § 2611 (2000).78. FMLA, supra note 60.79. Williams, supra note 11, at 10.80. Williams & Segal, supra note 10, at 13.81. Id.82. D.C. Code § 2-1402.11 (2001).83. Cal. Lab. Code § 230.8 (West 1994).84. Md. Code Ann., State Pers. & Pens. § 9–505 (1997).85. Alaska Stat. § 18.80.200 (2000).86. Utah Code Ann. §34A-5-106 (West 2003).87. Me. Rev. Stat. Ann. tit. 5, § 4572-A (2006).88. Va. Code Ann. §2.2-3901 (West 2003).89. Cal. Gov’t Code § 12945 (West 2005).90. Williams & Segal, supra note 10, at 13.91. Id. (“These types of suits open the door to potentially large monetary awards for emotional distress, pain

and suffering, and punitive damages.”).92. Alaska, California, District of Columbia, Maine, Utah, and Virginia.

http://www.uchastings.edu/site_files/WLL/IssueBriefFRD.pdf


93. Williams, supra note 10 at 23.94. Id.95. Id.96. Id. at 20.97. See e.g., Tractor Supply Co., 2001 WL 1301335 (Arb.).98. Williams, supra note 10, at 21.99. E.g., id. (discussing arbitration of VA Medical Center of Indianapolis).100. Peter Richardson in Williams, supra note 10, at 20.101. This proposed amendment is based on 42 U.S.C. § 2000e-2(a) which reads as follows:

(a) Employer Practices It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any indi-vidual with respect to his compensation, terms, conditions, or privileges of employment, because of suchindividual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which woulddeprive or tend to deprive any individual of employment opportunities or otherwise adversely affect hisstatus as an employee, because of such individual’s race, color, religion, sex, or national origin.

102. 42 U.S.C. § 2000e-2(b), (c); D.C. Code § 2-1402.11(a)(2), (3), (4).103. D.C. Code Ann. § 2-1401.02 (2001).104. E.g., it could state which statutes, and which provisions, were to be mentioned between employer and

employee.105. Mary C. Still, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with

Family Responsibilities (Center for WorkLife Law, 2006), available at http://www.uchastings.edu/site_files/WLL/FRDreport.pdf at 11. Figure 3 shows the breakdown of cases by state and circuit, with higher numbers being filedin more sympathetic courts.

106. See Heymann, supra note 8.

This Note would not have been possible without the help and support of many people. First, I would liketo thank my family for their unwavering support throughout all of my academic endeavors. Also, I wouldlike to extend my thanks to Professor Schepard and the staff of Family Court Review for helping me (extensively!)with this Note. Finally, I would like to thank Courtney Setting and Christopher Shott for keeping me saneand always making me laugh.

Lindsay Taylor is a Research Editor for volume 46 of Family Court Review. She graduated cum laude fromUniversity of Delaware in 2004 with a Bachelor of Arts in Political Science, with distinction, and minorsin History and Legal Studies. She will be clerking for the Family Court of Delaware in the upcoming year.

http://www.uchastings.edu/site_files/WLL/FRDreport.pdf

Documents

FAMILY CARE COMMITMENT DISCRIMINATION: BRIDGING THE GAP BETWEEN WORK AND FAMILY