Family Responsibility Discrimination

Employment Discrimination on the Basis of Family Responsibilities

Federal and state laws recognize the importance of family relationships by protecting workers who need time to meet their familial responsibilities. The Family and Medical Leave Act (FMLA) is the primary federal law that helps employees with their obligations by requiring employers to grant a specific amount of unpaid time off from a job to care either for themselves or a family member in the event of illness, injury, or the birth of a child. You are entitled to these days off without fear of job loss or retaliation. Unfortunately some employers deny benefits under FMLA or discriminate against employees who use their benefits.

The Americans with Disabilities Act also permits taking time off for family obligations, while Title VII of the Civil Rights Act of 1964 includes requirements related to leave for pregnancy or pregnancy-related conditions. Unlike the ADA and Title VII, the Equal Employment Opportunity Commission (EEOC) has no responsibilities related to FMLA. Instead, the United States Department of Labor administers and enforces those rights.

Family and Medical Leave Act

The FMLA covers private employers with 50 or more employees. This leaves employees of smaller businesses without its benefits, although they may find similar protections under the ADA and Title VII, which cover employers with at least 15 employees.

Under FMLA, an eligible employee can take up to 12 weeks of leave during any 12-month period for:

  • The birth of a child or to care for a newborn;
  • The adoption or foster care of a child by the employee;
  • Care for the employee’s spouse, son, daughter, or parent with a serious health condition; or
  • A serious health condition that renders the employee unable to perform one or more essential job functions.

A serious health condition under FMLA is “an illness, injury, impairment, or physical or mental condition” that involves inpatient care or continuing treatment by a health care provider.

An employee eligible for FMLA leave can take it intermittently for his or her own serious condition until he or she has used up the equivalent of 12 work weeks over a 12-month period. If the leave is foreseeable because medical treatment is planned in advance, an employer may ask the employee to temporarily transfer to an available alternative position for which the employee is also qualified and that better suits the reduction in hours. This will not be construed as retaliation, but the employer needs to offer equivalent pay and benefits to an employee who is transferred to an alternative position, or the same hourly rate of pay and benefits for a part time position.

As with other employment discrimination laws, retaliation is prohibited under FMLA. “Retaliation” means the worker is a victim of a material adverse employment action. This includes termination, demotion, loss of benefits, reduced salary, or even a letter of reprimand. For example, an appellate court has held that an employee with post-traumatic stress disorder who suffers a panic attack after a conversation with a supervisor and takes an unanticipated FMLA leave may not be issued a letter of reprimand for failing to inform the supervisor directly of the leave, as the employer’s internal policy required.

A serious health condition under FMLA is not necessarily the same thing as an ADA disability. However, some overlap between “serious health conditions” and certain ADA disabilities exist, such as cancer.

When an employee asks for FMLA leave, employers do not violate the ADA by asking for the specific information necessary under FMLA. During the leave, the employer is required to maintain the employee’s group plan coverage under the same level and must take the employee back after his or her FMLA leave into the same or an equivalent job.

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