Imposing a Duty to Talk About Family Responsibilities

Posted by marykeating on October 7, 2010 under Family responsibility, Pending legislation, Sex-based discrimination | Be the First to Comment

I have been thinking about the problems of people facing job difficulties because of their family responsibilities.  On Sunday, the ACLU hosted a forum to discuss the issue; I talked about the patchwork of laws that cover some areas and leave some unprotected.  The forum featured Kevin Knussman, the state trooper who fought a ten-year lawsuit after the state denied him leave to help care for his newborn daughter and ill wife.  His supervisor told him that unless his wife was dead or in a coma, he was not entitled to parental leave, since he could not have or breastfeed a baby.

Many workers feel the effects of discrimination against them on the basis of their family obligations.  Schedules are changed, which wrecks a carefully mapped out system.  An employer assumes that a woman with small children will not want to travel, so she can’t be given the promotion.  A worker takes off time to help with his aged father’s illness, and the boss questions his commitment to his job.

In some cases, the attitudes and actions violate existing laws.   For example, if a woman is not considered for a plum assignment because she has young children, and is assumed to place her family ahead of her job, while men with young children do not face the same barrier, that is gender discrimination.  If an employee takes occasional time off to care for an ailing mother, discrimination may be outlawed by either the Family and Medical Leave Act, or perhaps by the Americans with Disabilities Act prohibition forbidding discrimination on the basis of the employee’s association with a disabled person.  But there are holes in these overlapping laws.  And often it is difficult to separate the effect of discriminatory attitudes from the employer’s asserted need to impose certain schedules and get certain jobs done.

A new law has been introduced in Congress that would require the employees and employer to discuss the worker’s need for flexibility.  Entitled the “Working Families Flexibility Act,” the law is designed to:

permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions, and for other purposes.

Under this bill, the employer is required to discuss the employee’s need for certain hours and places of work.  In fact, if the employer rejects the application for flexibility, it must make a written decision outlining the reasons.  The employee may ask for reconsideration, and the parties must have a meeting, at which the employee may have representation.  The employer is forbidden from retaliating against the employee for making the request, or interfering with the right to make the request.

The thrust of this law would be to force employers to give actual consideration, not an automatic “no” to requests to work from home, start later, or work four ten-hour days.   It does not require any particular outcome, however.  The bill is in committees in both the House and the Senate.

Maryland’s general assembly rejected a law last year which would have added another prohibited basis of discrimination.  Under the anti-discrimination laws, an employer would be liable for taking actions such as firing, refusing to hire, refusing to promote, or paying less to an employee on the basis of his or her family responsibilities.  It did not pass, but new laws are more likely to pass in non-election years, which we have coming up this winter.