Posted by marykeating on May 11, 2012 under Economic situation, Family responsibility, Pending legislation, Sex-based discrimination | 
Congress will consider a new bill called the Pregnancy Fairness Act, designed to improve the rights of pregnant workers against endemic discrimination. The bill was introduced on Wednesday in the House.
The ways in which courts have limited pregnancy discrimination laws are well described in this article.
The new law would require employers to make reasonable accommodations to their pregnant workers, similar to requirements under the Americans with Disabilities Act. Like the ADA, it would apply only to employers with at least 15 employees.
Pregnancy discrimination appears to be on the rise, based on the calls I have been receiving. The worker who loses her job because she is pregnant is in a triple bind: she loses income, she loses her health care benefits when she needs them most, and she is less likely to be considered for a job, since she will need a leave of absence in the coming months. Many pregnant women are capable of continuing their work through term, but may occasionally need to sit down, visit a restroom more often, or refrain from heavy lifting. If an employee’s job is “Heavy Lifter,” perhaps no accommodations can be considered reasonable. But for most employees some simple consideration can keep them working.
Posted by marykeating on March 8, 2012 under Family responsibility, Pending legislation |
A new bill has been introduced into the House and the Senate, called the Working Families Flexibility Act. The law would require all employers with at least 15 employees to work with employees who ask for flexible working conditions. For example, employees who need to limit hours, limit on-call hours, work closer to home, or request time off for school meetings are allowed to ask for such modifications without fear of retaliation
Then, just as with the Americans with Disabilities, Act, the employer and employee are supposed to discuss the matter and try to work out an accommodation. A denial requires a written decision. This requirement would make the employer consider the request sufficiently to frame a denial, which could lead to some compromise. An employee with more than one supervisor could go to the other supervisor if the first one denied permission. The bills are with committees now.
Maryland is also considering a family-friendly bill, SB329, this one to mandate short periods of unpaid leave for parents to go to school conferences. This is especially important to children needing individual education plans. Other than a disruption of the schedule for no more than four meetings per year, the bill would not inconvenience employers or add to their costs.
Posted by marykeating on July 29, 2011 under FMLA, Family responsibility |
At the same time that employers are wailing about employees taking Family and Medical Leave protected under the FMLA, Congress continues to consider broadening its protection. We are witnessing a cultural divide between employers, used to dictating the schedules of their employees, and employees, clamoring for more work-life balance. Articles constantly tell us that the younger generation, especially, demands accommodation for having a life. They also remind us that the baby boomer generation is in a sandwich, caring for younger children, and aging parents. Sometimes these responsibilities just do not fit with a typical work schedule.
One of the recent tweaks would allow employees to take FMLA leave to participate in or attend children’s and grandchildren’s school and after-school activities. The time is limited to 4 hours in any month, and 24 hours in a year. The bill would also allow, subject to the same time limitations, time off for routine family medical or dental care needs, and attending to the needs of elderly family members, including nursing home visits.
This law is called the Family and Medical Leave Enhancement Act of 2011.
Another proposed amendment should be less controversial. The Parental Bereavement Act of 2011, S.1358, would provide leave to an employee under the FMLA following the death of a son or daughter. Unfortunately, there apparently is a need for this law. It is hard to fathom how an employer could deny a bereaved parent of leave after a child’s death. If the law passes, however, employers with more than 50 will not be able to fire a parent for not returning immediately to work. The bill specifies that the leave must be taken as a block of time. If the employer agrees, the employee may use it intermittently or to take a reduced schedule.
Ultimately, these laws improve our economy. People who can take their children to the doctor without losing a job can pursue a wider array of jobs, and work to their full capacity. As telework becomes more widespread, and checking on email and phone messages after hours becomes required, the line between work and personal life is already blurry. Employers have employees’ attention at home; they should allow them to leave the office now and then.
Posted by marykeating on July 5, 2011 under Employment benefit issues, FMLA, Family responsibility, Sex-based discrimination |
A Maryland state employee filed suit after his termination from the court system. He claimed that he was the victim of race discrimination, and also that his termination violated the Family and Medical Leave Act. The lower courts rejected both contentions, but the Supreme Court has agreed to hear the issue involving his FMLA claim. This blog discussed the case earlier.
That part of the decision related to the immunity of states from private lawsuits in federal courts. Under the 11th Amendment to the Constitution, states cannot be sued in federal courts unless the state has consented to the suit, or Congress has specifically, and legally, removed the immunity.
The Supreme Court earlier decided that Congress removed the immunity for FMLA suits against states when the employee was using FMLA protection to care for another person. The FMLA protected workers in that situation because of ingrained sex discrimination, “the pervasive sex-role stereotype that caring for family members is women’s work.”
The FMLA offers protection to workers taking time off for their own illness or disability also; but according to the Fourth Circuit, the motivation for the law did not implicate any constitutional protections. Instead, Congress found that the economic effect of job loss due to illness was profound, and sought a way to limit it when larger employers were involved. Because there was no constitutional imperative underlying the law, Congress could not validly permit the states to be sued.
The petition for certiorari pointed out cases in which the circuit courts believe that the law has to stand or fall as a unit, therefore all of its parts must be viewed together. Others specifically requested the high court’s guidance.
The Supreme Court does not announce why it agreed to hear a case; it becomes clearer (sometimes) after the decision comes out. The Rehnquist Court upheld states’ rights to be free of federal legislation, but this newer Court may go in a different direction.
Posted by marykeating on December 23, 2010 under Family responsibility, Pending legislation |
The President has instructed the Office of Personnel Management to develop policies to protect mothers who are breastfeeding their infants, and need time and space to pump during the day. Although the new health care law protects many hourly workers, see discussion here, the President wants all federal workers to get the protection.
While finding space may not always be easy for an employer, hence the limitation to larger employers, many employers may be pleased to find that productivity is not necessarily affected. During my own bouts of working and pumping, I found that I could at least read during these breaks. Many employees may have similar ways to use the time in some productive way with the use of audio podcasts, for example.
The policies are supposed to be announced as soon as they are ready. Since some federal agencies already have them in place, that theoretically should not take long.
Posted by marykeating on December 21, 2010 under Employment benefit issues, Family responsibility |
The Fourth Circuit recently made an unexpected (by me, at least) ruling on the Family and Medical Leave Act in Coleman v. Md. Ct. of App. It rejected claims (including race and retaliation) by an employee of the Maryland court system. The employee claimed that his termination was motivated in part by his requesting to take time off for an illness. He had been employed long enough to be covered by the Family and Medical Leave Act, and of course the state has more than 50 employees. But the Fourth Circuit decided that Congress went too far in making states liable under the federal law. Under the Eleventh Amendment to the Constitution, states are immune from suit in federal court, with many exceptions. One exception is when Congress has the power under the United States Constitution to trump the state’s interest.
In the case of the FMLA, Congress enacted the law in large part to protect the jobs of women, who are disproportionately the caregivers to young, older, and sick relatives. But in the case of self-care, the Circuit Court decided, there was no such attempt to combat discrimination. Instead, the goal was to ease economic hardship caused by illness.
The Fourth Circuit had earlier held that no part of the FMLA could be applied to states. That decision was overturned by the Supreme Court in 2003, in Nevada Department of Human Resources v. Hibbs. The Supreme Court could revisit this issue if different circuits issue inconsistent opinions.
Posted by marykeating on November 9, 2010 under Family responsibility, Sex-based discrimination |
More news from the work-life balance front. A former vice president of Goldman Sachs asked for a part-time position after she had a baby. She was eventually fired, and filed suit claiming that the firm purposely gave an “off-ramp” to mothers, but no “on-ramp” that allowed her to resume her career path. After having her children, she was demoted, removed from her office, and fired while on her second maternity leave.
Goldman Sachs settled the case, the details are confidential.
People have been scornful of the “mommy track” for years, while companies publicly wring their figurative hands on how to increase diversity and keep people in the fold who need or want some kind of flexible schedule. I think and hope that as time passes, we will get more places that mean it.
Posted by marykeating on November 5, 2010 under Family responsibility |
The Center for Work Life Law is a nonprofit research and advocacy group with a laser-like focus on life balance for everyone who works. Though it’s based out of the University of California, Hastings College of the Law (where I spent many many hours studying for the bar exam), there is a DC office which keeps good track of Maryland laws and cases.
I’m reminded by the DC resident lawyer and senior advisor, Cynthia Thomas Calvert, that I was a little too negative and incomplete on the post about family responsibility discrimination. Specifically, I said, “We do not have a law in this State outlawing family responsibility discrimination” That is true statewide, that we do not outlaw discriminatory practices based solely on parental or other caregiver status. But there are several counties (Frederick and Montgomery, explicitly, and Howard and Prince George’s, with vaguer language) and the City of Cumberland with local laws outlawing family responsibility discrimination. In addition, there can be a gender discrimination case where women (or a specific woman) is assumed to be of lesser value than a man because of her family responsibilities. Finally, there may be protection under the Family and Medical Leave Act governing larger employers.
So, depending on the facts of the situation and the location of the employer, there may be legal protection. See the latest blog post by the Center for WorkLife Law, on a company specifically weeding out people with childcare concerns, reminiscent of “Irish Need Not Apply,” “Whites Only,” and “Girl Friday Wanted.” As the work of the WorkLife Law Center makes clear, there is a lot of work to be done on our laws and on our view of whether work must be the extreme dictator of every adult’s life.
Posted by marykeating on November 3, 2010 under Family responsibility |
Don’t know much about history. Don’t know much biology. What I do know is that “men are big and strong and women have babies.” Therefore “women are made to care for the family,” and “men can be counted on to work long hours to bring home the bacon.”
Sounds like the early 60s, like the song quoted? Sure, but these attitudes are still alive and well. We do not have a law in this State outlawing family responsibility discrimination. Women who are caring for young babies can be overlooked for promotions merely on the assumption that they can’t be counted on to give work priority. But men are subject to antiquated assumptions too: men are assumed to be available for assignments outside of the normal work day, because fathers don’t care about soccer games or ballet recitals. “Men don’t take off serious time when a baby is born.” “Women can’t be counted on to return after a baby is born.”
If we can’t have a law to stop the discrimination, we can work to change the attitudes. Joan Williams blogged about the subject of her new book, titled Reshaping the Work-Family Debate: Why Men and Class Matter. The book talks about professional men and how they are burdened by the assumptions that they live for work and success. She estimates it will take another half-dozen years to continue the discussion about men in the workplace who want to focus on their families (or other interests), too, before we arrive at a more balanced outlook of the issue. That is not to say that the issue will be solved, but we may be past some of the stigma of a man asking for time off for family priorities.
Posted by marykeating on October 7, 2010 under Family responsibility, Pending legislation, Sex-based discrimination |
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.
