When an employee’s family responsibilities change, i.e. marriage, the birth of a child or the illness of a spouse or parent, employers can make and/or act upon any number of discriminatory assumptions.  For instance, in our practice we see employers, time and again, assume that once a woman starts a family that she will no longer be dedicated to her job or available for her employer’s needs.

These discriminatory assumptions and action have given rise to a new category of discrimination:  Family responsibility discrimination (also known as family status discrimination). 

While the prevalence of this type of discrimination has been noted by academics and government officials alike, there is not yet any comprehensive federal anti-discrimination statute protecting family caregivers as a class.   Significantly, many state and local governments have created their own protections for family caregivers.  Indeed, the Illinois Human Rights Act protects employees from discrimination based on the narrower category of marital status, and both the Cook County and Chicago Human Rights Acts protect for both marital and parental status discrimination.  One would hope that the federal government would take note of this trend and enact similar legislation however, given our current political climate, that may be a ways off.

In the absence of specific federal protection, the United States Equal Employment Opportunity Commission has recently issued guidance to employers on the ways that discrimination against family caregivers may violate already existing laws which protect against gender and disability discrimination.  http://www.eeoc.gov/policy/docs/caregiving.html.  For instance, discrimination against pregnant women has long been prohibited under the gender discrimination provisions of Title VII of the Civil Rights Act of 1964.  Similarly, workplace policies based on stereotypes regarding family care which disparately impact men and women will be illegal under that same provision.  For example, if an employer allows for leave to care for children or parents to its female employees but not its male employees, this will be a violation of Title VII.  In addition to Title VII, the Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination against employees who have a relationship or association with a disabled person.  Thus, if an employer were to discriminate against an employee for his need to care for a disabled child, spouse, or parent, this would be a violation of the ADA. 

In addition to the EEOC, several courts have also begun to use the existing civil rights statutes to chip away at family responsibility discrimination.  For instance, in Santiago-Ramos v. Centennial P.R. Wireless Corp., the U.S. Court of Appeals for the First Circuit held that comments by decisionmakers reflecting concern that a plaintiff might not be able to balance work and family responsibilities after she had a second child could lead a jury to conclude that the plaintiff was fired because of sex, in violation of Title VII.  217 F.3d 46, 55 (1st Cir. 2000).  Additionally, the Seventh Circuit, our local court of appeals, also explained that an employer cannot consider parenthood status in making employment decisions because “….the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.  Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

Decisions such as these, as well as the EEOC’s new guidance, serves as useful reminders to employment attorneys that creative legal arguments can be used to protect the role of family caregivers in the workplace.  But perhaps more importantly, they encourage employers to craft family-friendly policies which will help them in avoiding family responsibility discrimination in the workplace.

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