X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.


You’ve heard about the glass ceiling. Welcome to the maternal wall. Some labor attorneys in Florida say a lot of women are walking into their offices saying they are victims of workplace discrimination in family care-giving matters.

Maternal and care-giving discrimination comes in all flavors: outright termination because a mother cares for her sick or disabled child, derailing an employee on track for a promotion after she gets married or creating a hostile workplace environment for pregnant employees.

Men can find their careers reach dead ends if they take a larger role in child-rearing as well, the Equal Employment Opportunity Commission said in a report last year.

There is also the issue of elder care, as many baby boomers find themselves taking care of those who once diapered them.

“Cost-cutting companies, so many of them, are more worried about keeping somebody at their station and working in the salt mines than allowing them to take time off to take mom to the doctor,” said labor and employment plaintiffs attorney Bill Amlong of Amlong & Amlong in Fort Lauderdale, Fla.

Donna M. Ballman, another plaintiffs attorney in Fort Lauderdale, said, “I can’t tell you how many people come to me who get terminated because they missed work for a sick kid.”

The University of California Hastings College of Law in San Francisco investigated the issue in 2006, finding family-responsibility discrimination cases more than quadrupled in the previous 10 years to 481 from 97 in the previous decade.

The 11th U.S. Circuit Court of Appeals, which includes South Florida, ranked eighth in the number of cases nationally filed at 24. The 6th Circuit, which includes Ohio, Minnesota, Kentucky and Tennessee, had the most with 56, the study found.

Hastings faculty fellow Marcy C. Still and a host of law students also found plaintiffs were more likely to win family-responsibility claims than other discrimination lawsuits. Awards ranged from $100,000 to $25 million.

Among the offenders were 30 that had been designated “Best Companies to Work For” by Working Mothers magazine or had been touted by Fortune magazine as “Most Admired.”

The lawsuits are brought under Title VII, which makes it illegal to discriminate in the workplace based on sex. The most likely to sue are blue-collar workers in the service industry, the study found.

“As more mothers have entered the labor force, families have increasingly faced conflicts between work and family responsibilities, sometimes resulting in a ‘maternal wall’ that limits the employment opportunities of workers with care-giving responsibilities,” the report states.

It’s something the late U.S. Supreme Court Chief Justice William Rehnquist noted in a 2003 sex discrimination case: “The fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.”

The courts have ruled in favor of equal compensation for full- and part-time work in the same job. The case was made in a Virginia court in 2003 when Linda Lovell, an engineer at a technology research company, reduced her hours to take care of her children and discovered her full-time counterparts were making $2 an hour more than her.

The rub in all the talk about family-care issues is that in and of itself, different treatment of employees is not necessarily discriminatory, the EEOC said in a May 23 enforcement guidance memo to employers. Yet the EEOC warns that just about any family-care situation can become discrimination based on gender, race, age and retaliation.

The 10-page EEOC report with a blizzard of 89 footnotes raised eyebrows in the labor and employment defense bar.

“What they are doing is taking the concept of sex discrimination and grafting it onto a caregiver situation,” said Michael Casey, managing partner of Miami’s Epstein Becker & Green, who specializes in labor law. “I think they are overreaching a bit.”

Casey said, “you have to kind of scratch your head” when determining how to avoid caregiver discrimination when the report states it’s technically not against the law.

“Then why do you go on?” he asked.

Cathie Shattuck, a former EEOC trial attorney who is of counsel for Epstein Becker & Green in Washington, D.C., said companies want to accommodate workers in family situations on an ad hoc basis.

“It’s an attempt to expand their (EEOC) authority,” Shattuck said of the guidance. “I have not seen any cases prompting this kind of advice giving.”

Sheila Cesarano, who chairs the labor and employment practice at Shutts & Bowen in Miami, said she finds family responsibility discrimination suits pretty novel at the moment. “Sometimes it takes time for employees to know they have a cause of action,” she said.

Dianna Johnston, assistant legal counsel with the EEOC in Washington, D.C., said that time is now — more than labor attorneys realize.

“It does seem to be an area of increasing interest for both employers and employees,” she said. “There seems to be an increase in litigation.”

Caregiver issues can transform into discrimination without employers realizing it, according to the EEOC. For example, race discrimination could occur when women of color are treated less favorably than their counterparts because of stereotypical notions held by a boss about pregnancy. In another instance, white women may be allowed to take time off for lunch to care for children, while black women are denied the same privilege.

The EEOC report lists 20 examples of how employers can find themselves on the wrong end of a family responsibility discrimination lawsuit.

Workplace discrimination against pregnant women is rampant, Amlong said. An associate at his firm has almost made it into a cottage industry, he said.

Some of the worst offenders are big law firms, he said, offering the example of a young attorney who was fired right after telling her supervisors she was pregnant.

“Gender discrimination is pretty alive and well,” Amlong said. “In some law firms they have a specific saying: ‘If you are a woman lawyer, you are either on the partner track or the mommy track.’ They frequently deride young women lawyers as ‘mommy trackers.’”

But gender sometimes has nothing to do with it. Increasing numbers of workers must take time off to attend to a sick parent.

“One reason is so many of us boomers have parents who are still alive,” Amlong said. “My office manager has to take care of her mom, who is in her 80s. People live longer these days, and there are a whole lot of boomers with aging parents.”

One of the problems in addressing new family care concerns is the EEOC doesn’t really bare much teeth, he said. Its mediation program has improved tremendously, but the EEOC brings only about 400 lawsuits a year, little more than one a day.

“I would love it if the EEOC would become more aggressive,” Amlong said.

Attorneys like Ballman have found it’s best to negotiate first and think about suing later.

“Employers jump to conclusions that the woman is not going to be able to devote as much time to work because of family,” she said. “It’s an issue that can be resolved with a conversation.”

But some companies are unyielding on the issue, she said.

Most of her fired clients don’t get their jobs back.

“What I find is employers would save a lot of money once they realize they could just reinstate people,” Ballman said. “In 21 years of practice, I’ve had three people reinstated. They either offer some severance or compensation or make them gut it out in litigation.”

This article originally appeared in the Daily Business Review, a publication of ALM.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.