Delaware Employment Law Blog

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month's Delaware Today magazine.  Young Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation's adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur--a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave--the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act ("PDA"), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It's likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

Does your workplace have an unwritten policy benefiting married employees?  John Phillips, at The Word on Employment Law, asks this question and posits some very interesting answers.  In his post, Holiday Pitfalls: Time Off from Work and Marital Status Laws, John points out the common problem of competing requests for time off during the holiday season.  Let's face it, everyone wants off over Thanksgiving, Christmas, and New Year's.  And, just because someone doesn't celebrate a particular holiday don't mean that they want to sit in the office all day by themselves, as the lone soldier manning the fort.  So who foots the bill when it comes to getting stuck with the holiday shift nobody wants?  John notes:

Single employees may come out holding the short end of the stick when there’s sort of an unwritten policy that married employees, particularly those with children, are given preference on these holiday-related vacation or PTO requests.

He goes on to discuss the application of marital-status as a protected class.  In Delaware, as well 18 other states according to John's count, marital status is a protected characteristic, just like race, religion, gender, and age.  Another characteristic that has received attention in recent years is caregiver status.  Caregiver, or Family Responsibilities discrimination, occurs when an employee is subject to an adverse employment action as a result of his or her caregiving responsibilities at home. In other words, an employee who has an elderly parent at home or who is raising small children may be the target of discrimination if the employer doesn't select him or her for a promotion based on the employer's misgivings about the employee's "split attentions."  

Generally, discrimination is not found where an employee is given better treatment because of a protected characteristic--but this is not always the case. 

Is it a common occurrence around the holidays to hear an employee assert that her request for time off should be granted over the request of another employee because she "has little kids at home"?  If so, is that a fair assertion?  On one hand, it seems fair that a mother with small children has plenty of reasons to be home at the holidays.  But, if you are the employee without children, is it fair that you would be expected to carry the burden of "last man standing" in the office? 

As John concludes, this is an issue of workplace relations more than a legal matter.  But, so often, legal problems are largely derivative of a sense of being treated unfairly that it's unrealistic to separate the two concepts entirely. 

October is National Work and Family month. The Alliance for Work-Life Progress (AWLP) , sponsored the work-life-balance initiative, which was passed by Congress in 2003. National Work and Family month recognizes the importance of employer-sponsored work-life programs in attracting, motivating and retaining top talent.

Though employers may scoff at such perceived “perks” in the current economic environment, organizations that incorporate work-life programs report that such programs help to create more effective workplaces. Flexible work arrangements provide enhanced employee performance and show that employers care about the well-being of their workforce.

With an increase in single-parent households and homes where both parents are wage earners, businesses must proactively incorporate work-life initiatives into their business models.  The Families & Work Institute released a study last Spring, the 2008 National Study of Employers, which showed that employers are rapidly adjusting to the demands of the family-oriented employee. Proponents of work-life programs say that such initiatives reduce turnover, absenteeism, and stress-related illnesses, as well as contribute to increased productivity.

  Moreover, work-life balance is critical to attracting Gen Y workers, who don’t understand the rigidity of the 9-to-5 work week created by Baby Boomers. Study after study have shown that Millennial employees work best when they can set their own hours to get work accomplished. Our department  has written numerous posts on recruiting, managing, and retaining Millenials.

If your company is already implementing such a program, you can nominate it for AWLP’s Work-Life Innovative Excellence Award – nominations are being accepted until November 15, 2008. If you think your company could do better, take AWLP’s self-audit, help you identify ways in which you can help your workplace balance the work-life dynamic and enjoy all of the benefits of an engaged workforce.

For more information on Work-Life balance, Alternative Work Schedules, the pros and cons, and implementation please read:

1. Feds Take a Cue from the States and Consider the 4-Day Workweek
2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
3. Positive Benefits of a Four-Day Work Week
4. 5 Steps Toward a More Flexible Workplace
5. Should a Four-Day Work Week Be Mandatory*
6. It's Saturday Today in Utah: 4 Day Work Week
7. Alternatives to the Four Day Work Week
8. Popularity of the 4-day Week Continues to Grow
9. Will Four-Day School Week Push the Four-Day Work Week Trend?
10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
11. Alternative Work Arrangement May Soon Become Mandatory
12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
13. How the Current Economy Could Affect the Future of Flextime
14. New Employer & Workplace Study on Flexible Schedules
15. The Pros and Cons of a 4-Day Workweek: Cons
16. New Survey on Workplace Lateness Supports Flextime Initiatives?

Federal Employees Paid Parental Leave Act (H.R. 5781) Passes the House

The FMLA mandates that employers of a certain size give parents 12 weeks’ leave, and allow them to return to the same or substantially similar position. But with the exception of a few states who have enacted states requiring that some amount of this leave be paid, employers have no obligation to pay for any parental leave.

That may soon change for the nation’s largest employer. On June 19, 2008, the House passed the Federal Employees Paid Parental Leave Act (H.R. 5781) by a 278-146 vote. H.R. 5781 provides federal employees with four weeks of paid parental leave after the birth or adoption of a child. A bipartisan companion bill has been introduced in the Senate. Stay tuned until after the November elections to see what kind of momentum this one builds!

Workplace Flexibility Across Borders

The Institute for Women’s Policy Research in conjunction with the Center for WorkLife Law recently released “Statutory Routes to Workplace Flexibility in Cross-National Perspective.” The report presents an interesting statutory overview of what 21 high income countries, including the U.S., are doing or not doing in the area of workplace flexibility. Many of these countries have some form of “flexible working statutes,” which put the burden on the employer to defend why it will not allow a flexible working schedule.

The report notes U.S. legislation—the U.S. Working Families Flexibility Act—which was introduced by Sen. Ted Kennedy and Congresswoman Carolyn Maloney and modeled after the United Kingdom and New Zealand laws. Intrigued? You can read the whole report on WorkLife Law’s website.

Federal Employees Paid Parental Leave Act (H.R. 5781) Passes the House

The FMLA mandates that employers of a certain size give parents 12 weeks’ leave, and allow them to return to the same or substantially similar position. But with the exception of a few states who have enacted states requiring that some amount of this leave be paid, employers have no obligation to pay for any parental leave.

That may soon change for the nation’s largest employer. On June 19, 2008, the House passed the Federal Employees Paid Parental Leave Act (H.R. 5781) by a 278-146 vote. H.R. 5781 provides federal employees with four weeks of paid parental leave after the birth or adoption of a child. A bipartisan companion bill has been introduced in the Senate. Stay tuned until after the November elections to see what kind of momentum this one builds!

Workplace Flexibility Across Borders

The Institute for Women’s Policy Research in conjunction with the Center for WorkLife Law recently released “Statutory Routes to Workplace Flexibility in Cross-National Perspective.” The report presents an interesting statutory overview of what 21 high income countries, including the U.S., are doing or not doing in the area of workplace flexibility. Many of these countries have some form of “flexible working statutes,” which put the burden on the employer to defend why it will not allow a flexible working schedule.

The report notes U.S. legislation—the U.S. Working Families Flexibility Act—which was introduced by Sen. Ted Kennedy and Congresswoman Carolyn Maloney and modeled after the United Kingdom and New Zealand laws. Intrigued? You can read the whole report on WorkLife Law’s website.

Family Responsibility discrimination (FRD) and gender discrimination are the targets of many advocacy groups who work to promote family-friendly workplaces.  WorkLife Law, 9to5, and Families and Work Institute are just some of them. Families & Work Institute released a study on May 21, the 2008 National Study of Employers, which followed ten-year trends in U.S. workplace policies and benefits. The results were mixed.

Employer Study on Flextime & Alternative Work Schedules

The study revealed good news and bad news for employees seeking flexible working conditions. 79% of employers now allow at least some employees to periodically change their arrival and departure time, up 10% from 10 years ago.

But off-ramping, which allows employees to move from full- to part-time work and back again while remaining in the same position or level is down 10%.  In 1998, 57% employers reported that they permitted off-ramping. Today, only 47% answered this question affirmatively. This may well be attributable to a failing economy and employers looking to cut the bottom line.

Not surprisingly, the study found that the presence of women in senior positions correlated with a more flexible workplace. It makes sense that if the people in charge require flexible schedules, they might be more likely to provide them for their employees.

What, if anything, do these findings mean for employers? There is no law that requires employers to allow flexible work schedules.  (Well, not yet anyway. This may change if the above advocacy groups have any say about it!)   So why would you make these special accommodations, especially when it appears that their popularity is on the decline?

1.  Workplace Flexibility Increases Profits

The first and most important reason is increased profitability.  It makes good dollars and cents sense when you look at the economics related to the advancement and retention of women and minorities. It is an undeniable fact of the modern workplace: women are a significant part of your potential workforce. Particularly in professional fields, employers have spent lots of time and money training female employees.

Often, any costs involved in permitting flexible work arrangements are far outweighed by the cost of hiring and training someone else to do the job. Therefore, many employers have decided it’s well worth the investment to provide a flexible schedule in order to retain an employee for the long haul.

2.  Flex-Time Translates to Risk Avoidance

A second reason is the potential for litigation surrounding the flex-time issue. Right now there is nothing illegal or improper about denying flex-time if its denied across-the-board for male and female employees. However, many of the advocacy groups have threatened to file a disparate treatment case with regard to flex-time denial, arguing that it unfairly impacts female employees.

When the right case comes along with compelling facts, you can be assured that such a case will be filed and employers everywhere will start to jump on the flex-time bandwagon.

3.  Retention Linked to Flexible Work Schedules

Put yourself ahead of the pack and make your workplace an “employer of choice” by considering these flex-time schedules and off-ramping options now. These alternative work schedules are run-of-the-mill options among the companies ranked in the top 100 Places to Work.

Additional Resources:

Family Responsibility Discrimination (includes free summary of FRD)

Mommy Bias- Truth or Fiction?

Pregnancy Discrimination Claims on the Rise

Pregnancy Discrimination FAQ

Maternal Profiling

Testing Your Pregnancy Discrimination I.Q.

The so-called “anti-Mommy bias” has garnered a lot of attention recently. A type of workplace discrimination, “anti-Mommy bias” is also known as maternal profiling, or family responsibility discrimination. (See this recent article in the Cincinnati Enquirer and my earlier post on Family Responsibility Discrimination).

Groups such as the Center for WorkLife Law and 9to5, National Organization of Working Women, have reported alarming statistics regarding the increase in this type of discrimination. Kohl’s was recently hit with a multi-million dollar verdict (for allegedly discriminating against one of its managers because she was a mother.

Nevertheless, a recent survey suggests that the mommy bias may be more fiction than reality. According to the survey, only 15% of mothers say that becoming a mother has had a negative impact on their career, while 65% say that it has had no impact on their career path. If these survey results are correct, the problem may not be as widespread as it seems.

Nonetheless, given the national attention to this topic, and the EEOC’s focus on it (see EEOC’s Guidance on Caregiver Discrimination), I expect we will continue to see a rise in these types of claims. For tips on avoiding this type of claim, see the free corresponding handout, which can be downloaded from my prior post.

[H/T to Ohio Employer’s Law Blog]

Maternal Profiling (a subset of Family Responsibilities Discrimination, "FRD"), is employment discrimination against a woman who has, or will have, children.  Firing a newly pregnant employee. Interview questions designed to elicit details about child-care arrangements.  Just in time for Mother's Day, here are some key points for employers about this type of workplace discrimination.

Profiles of Maternal Profiling

In late April 2008, ABC News aired a piece on World News With Charles Gibson about Maternal Profiling.  As a follow-up to the piece, the ABCNews website posted an article called, Are You a Victim of Maternal Profiling, featuring women from Pennsylvania who had personally experienced this type of discrimination.

One woman believed that she was having trouble landing a new job because she was the mother of three.  She indicated that interviewers would often ask her outright whether she had any children.  She said that one employer told her that it would cost too much in health care.

Can He Ask That?

Can employers ask candidates whether they have children, or whether they have adequate child-care arrangements?   The answer is "yes," much to the surprise of many, including many of my HR clients.  Some states do have laws that prohibit these questions from being asked during job interviews.  But neither Delaware nor Pennsylvania are included among them.  So the short answer is, Yes, employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc.

Like Mom Always Said, "Just because your friends jump off a cliff doesn't mean you have to!"

We teach a lot of seminars.  We counsel a lot of employers.  We answer a lot of questions.  And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!

Just because it's legal doesn't mean it's smart, right?  No good can come of these questions.  So don't ask them.  Just don't do it. 

ADEA, ADA, FMLA, now FRD??? Is FRD (Family Responsibility Discrimination) the latest acronym to add to the growing list of potential employee claims to be concerned about?

At our Annual Employment Law Seminar yesterday, I presented on this subject, which has been a recent “hot topic” in the world of Employment Law. I also prepared a handout for attendees. It's a concise, easy-to-read summary of the "who, what, where, why, and how" of Family Responsibility Discrimination. You can now get a copy of the handout--use the link below to jump to a pdf copy of the materials. The articles might just turn out to be a handy reference when you have a potential FRD issue.

And if two pages (with pictures!) still seems to long for you, here's the conclusion I draw at the end; i.e., The Bottom Line about FRD:

The line where bias turns into an actionable family responsibility claim is not always an easy one to see. But given the EEOC’s focus on this type of discrimination, it is essential you recognize the issues. Review the EEOC’s enforcement guidance carefully and seek advice of counsel if you have any questions about taking employment actions with respect to an employee with caregiving responsibilities.

Just contact me if you need additional guidance on the rights and responsibilities of employers with respect to FRD.

Family Responsibility Discrimination Handout

Earlier this month, USA Today reported that a University of Hawaii student had filed suit against the public university for housing dicrimination. He alleged that, although he and his partner had been granted permission previously to live in the university-subsidized family housing, that permission had been revoked because the state did not recognize same-sex marriage. The couple, therefore, did not meet the criteria necessary to qualify for family housing.

Laws that protect againt housing discrimination and employment discrimination are often passed in the same bill. But Hawaii is not one of the states that has set up its laws this way. Hawaii state law prohibits discrimination in employment decisions based on sexual orientation. It does not have a parallel law for housing discrimination, though.

As you may know, Delaware has neither. But it has not been for lack of trying. Senate Bill #141 has been proposed and passed in the State House of Representatives for several years in a row. It has been tabled each time and housed in the drawer of a legislator until it is proposed again the following year. The bill would amend the titles of the Delaware Code that deal with Employment Discrimination, Public Housing and Public Works, Equal Accommodations, and Insurance. In each of those areas, it is unlawful to use race, religion, national origin, gender, age, or other protected characteristics as the basis for granting or denying access to, for example, public housing or government contracts.

Currently, 17 states and the District of Columbia include sexual orientation in their list of protected classes for the purposes of employment discrimination. In Delaware and Pennsylvania, public employers may not consider sexual orientation but there is no equivalent law for private employers. And neither Delaware nor Pennsylvania is one of the 15 states (including D.C.) that prohibit sexual orientation in its housing laws. Both Maryland and New Jersey are included among the states that prohibit consideration of sexual orientation both in housing and employment.