The Huffington Post: More Employees Are Suing Over Family-Leave Discrimination. Here’s What You Need to Know.Discrimination, In the News
June 14, 2016
After facing discrimination over taking family leave, more men and women are choosing to sue their bosses—and in some cases, winning substantial amounts.
That’s the main takeaway from the Center for Worklife Law at the University of California’s Hastings law school, which recently released an analysis of litigation trends.
The lawsuits are stemming from discrimination for being pregnant, having children or facing caregiver responsibilities for a sick relative. And unlike typical employment cases, where about 10 percent of employees win, the aggregate win rate is over 50 percent.
That is good if you’re a worker who’s recently faced what you believe is discrimination. But this is a tricky area of the law. Here are a few things you need to know.
1. Family-leave laws protect more than just parents.
People tend to think of family leave laws as centering on maternity leave. And as the Center for Worklife Law reports, cases involving pregnancy discrimination and discrimination against mothers make up the majority of these lawsuits.
But those laws are written broadly. They don’t just protect moms: fathers facing paternity leave discrimination can sue (and more are choosing to). And people with elderly parents or disabled relatives are also protected.
Here’s what this might look like:
You have an elderly parent who suffers from Alzheimer’s. He requires continuous care. You have worked at the same job for five years with a strong, positive work history. To better care for your father, you move him out of assisted living into your house. A paid caregiver takes care of him during the day, but leaves at 6, which means that you have to be home then.
Your performance at work remains strong, but you are no longer able to take part in the informal after-work-get-together frequently arranged by your boss. After missing these for a month, your boss stops by your office to ask why. You tell him. He responds “How long will this go on.” You tell him maybe years. After this, things change at work. For no apparent reason, your boss begins to criticize your work. At one point HR puts you on a performance improvement plan.
Although you do everything they ask and more, nothing seems good enough. One day, your father falls at your house, breaking an arm. You have to leave work early to get to the hospital and miss work the next day. You call HR letting them know what happened and put in for FMLA leave to cover the absence. When you return, the axe falls; you get fired. The last communication you receive from your boss is an email: “I’m sorry it had to end like this. You will be missed. I hope that this gives you the time that you need with your father.”
That would be discrimination under the Family Medical Leave Act and the Americans with Disabilities Act.
2. You’ll need an attorney to sort through the complex laws.
Yes, I’m an attorney who specializes in family discrimination law, so this may sound self-interested, but it’s still true. There is no single law that deals with family-leave discrimination. Instead, there’s a patchwork of federal laws, as well as state laws and even city ordinances that can play a role.
You can’t count on your boss to understand the law. You can’t even expect your HR department to get it right. Even a lawyer who does not follow this area of the law may not be able to get you the help that you need.
Most workers are in the dark about their rights in this area. The Center for Worklife Law found only 88 paternity leave claims and only 46 suits alleging discrimination related to breastfeeding.
You can educate yourself by doing some preliminary research. Organizations like the Center for Worklife Law, A Better Balance, First Shift and the National Women’s Law Center provide excellent online resources with information specific to family leave discrimination.
For more general legal information, you could look at the National Employment Lawyers Association, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Labor. State and county offices for human rights can also be good sources of information, for instance, in the District of Columbia the D.C. Office of Human Rights, and in Fairfax County Virginia, the Fairfax Office of Human Rights.
For more general information about the law written for non-lawyers, try Avvo and Nolo.
To find a good lawyer, check out Worklife Law, A Better Balance, First Shift and the National Women’s Law Center as well as the National Employment Lawyer’s Association, or one of the state affiliates.
3. When possible, take action before you get fired.
Family leave laws offer protection to employees while still at work in two ways. First, the American’s with Disabilities Act, the Pregnancy Discrimination Act and the Fair Labor Standards Act (for women needing to breastfeed at work) may require your employer to make reasonable workplace changes to allow you to continue to work.
But the key here is that in most instances, you have to ask in order to receive the protection. For instance, if you suffer from postpartum depression, you may have to make changes to how you work that allow you to recover: a quiet work place, regular hours or even time away from work, for example. But to achieve that protection you have to put your employer on notice that you suffer from depression (best to put in writing to your boss or HR) and then you have to ask for the help that you need.
Second, like many other anti-discrimination laws, many family leave laws make it unlawful for an employer to take action against you if report discrimination to your boss. But like the laws on reasonable accommodation, anti-retaliation laws only apply if you directly raise the issue of discrimination while you are still at work.
Let me give you an example. Suppose that your boss says that you are a shoo-in for a promotion. Before things become official, you announce your pregnancy. Next thing you know, the promotion goes a man who is your junior. When you confront your boss, she shrugs and says, “Them’s the breaks. Next round.” Let’s suppose things only go downhill from there and you get fired, even though your performance remained unchanged.
Here’s the thing: If you had complained about being skipped over for the promotion because you were pregnant before you were fired, you’d have a second claim of retaliation, which is easier to prove and gives you more leverage.
There’s also a chance that by reporting your concerns you might get the problem fixed. Sometimes companies do the right thing when they learn that a rogue manager is violating the law. By reporting what happened, you give the company a chance to fix it.
4. The Americans with Disabilities Act also offers protection.
When they think of the Americans with Disabilities Act, people tend to think of things like elevators and wheelchair ramps. But the ADA also protects pregnant women and people with disabled relatives. If you suffer from postpartum depression, you may be protected by the ADA. Or if you had a family member with special needs, you might be covered by the law’s association clause.
Before 2009, many courts narrowly defined disability under the ADA, but Congress has since expanded the definition and courts have now found that temporary conditions like pregnancy-related health problems and depression are covered.
Again, as we noted above, it doesn’t matter if your condition is covered if you can’t prove that your employer is aware of your disability. This weighs in favor of letting your boss know about an issue—especially in writing, with a copy in a secure place—even if you do not need an accommodation right now.
5. You are covered even if you’ve never had any trouble before.
Suppose you’ve worked at a company for years without incident. You’ve even had a child before without a problem, but suddenly you’re facing what you believe is discrimination. You might worry that your company’s previously good record will hurt your case, but it’s irrelevant. Worklife Law in its analysis noted a pattern of second-child and new boss discrimination.
Our experience supports this finding. We have seen a number of cases where new bosses or even new management brought in after a merger or other business change cause problems for new parents and those with other family responsibilities.
We’ve also seen discrimination related to the number of children an employee chooses to have. The boss was fine with the first child—maybe even threw a baby shower—but their attitude is that one child should have been enough.
Laws protecting family responsibilities are powerful, provided that you know how to use them.
This article originally appeared on https://www.huffingtonpost.com/tom-spiggle/more-employees-are-suing_b_10453692.html