Claims of Caregiver or Family Responsibilities Discrimination by California Employees

Jody LeWitter
jlewitter@sl-employmentlaw.com

Family Responsibilities Discrimination in a Changing Workplace

Presented at Continuing Education of the Bar (CEB)
April 29, 2011

1. No General Law Prohibiting Caregiver or Family Responsibilities Discrimination
   1. There is no federal or California law explicitly prohibiting discrimination against employees or job applicants based on their status as a caregiver, or based upon their family responsibilities.
      1. “Caretaker” is not a protected status under the law.
   2. There are a myriad of federal and California laws that can be, and have often been, cobbled together to create claims for employees who have been discriminated against due to their status as a caretaker or their family responsibilities.
      1. This patchwork of laws have been and will continue to be relied upon to provide relief until and unless a more comprehensive legislative solution is achieved.
      2. There are numerous claims or causes of action that may currently provide relief to caregivers facing employment discrimination.
      3. In many instances, what may be perceived as unprotected discrimination based upon family responsibilities overlaps with discrimination based upon a variety of protected statuses, and creates a cause of action to protect an employee.
   3. Standard of Motivating Factor
      1. With most relevant claims an employee need not prove that the protected status or activity was the sole reason for the adverse action.
      2. The employee need only prove that it was a motivating factor. See, Goelzer v Sheboygan County, Wis., 604 F.3d 987, 995 (7th Cir. 2010) (analyzing FMLA retaliation claim); Caldwell v. Paramount School District (1995) 41 Cal.App.4th 189, 205.
      3. Thus, where part of the motivating factor is the (unprotected) caretaker status and part is the (protected) status such as sex, disability, race, the taking of family leave, etc., an employee may bring a legal claim.
2. Sex Discrimination Claims
   1. Authority Prohibiting Sex Discrimination
      1. Title VII, 42 U.S.C. § 2000e, prohibits discrimination based upon sex or gender, as does the California Fair Employment and Housing Act, Cal. Gov’t Code § 12940(a).
   2. Caregiver Claims Can be Brought as Sex Discrimination Claims
      1. Many claims of caregiver discrimination can be brought as sex or gender discrimination claims by either female or male caregivers where differential treatment of the caregiver employee is based upon a stereotyped assumption based upon the employee’s sex.
      2. It is illegal to make decisions based on general assumptions (even if true) about male and/or female employees. “. . . [T]he antidiscrimination laws entitle individuals to be evaluated as individuals rather than as a member of a group having certain characteristics.” Lust v Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004) (discussing assumption “. . . that the average mother is more sensitive than the average father to the possibly disruptive effect on children of moving to another city.”
      3. “[P]ervasive sex-role stereotype that caring for family members is women’s work” accounts for leave policy treating men and women differently. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 731 (2005) (analyzing the rationale for the passage of the Family &- Medical Leave Act and upholding the validity of the Family Medical Leave Act as a valid exercise of congressional power).
      4. Gender discrimination can result in claims for female caregivers (stereotyped notions that women will not be reliable workers due to caretaker responsibilities) or male caregivers (stereotyped notions that male employee shouldn’t have caretaker responsibilities because these are women’s work).
      5. “Stereotypes and other types of cognitive biases . . .” can result in unlawful discrimination. Thomas v Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir. 1999).
   3. Jurisdictional Requisites
      1. Title VII requires that the employer have fifteen employees. 420 U.S.C. § 2000e(b).
      2. FEHA generally requires that the employer have five employees. Cal. Gov’t Code § 12940(j).
3. FMLA and CFRA Claims Including Interference and Retaliation Claims
   1. The Family & Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both can provide protections to caregivers, such as leave of absence and claims for interference with these rights, as well as claims for retaliation against exercising rights to FMLA and CFRA leaves.
   2. FMLA: Family Leave Under Federal Law
      1. FMLA provides employees with the right to take a leave of absence for up to twelve weeks in a twelve month leave year.
      2. FMLA’s leave provisions cover one’s own or specified family member’s serious health condition, including birth of a child, care for a newborn, or placement for adoption or foster care. 29 U.S.C. §§ 2611, 2612, et seq.
      3. The employee must have worked for 12 months and 1250 hours. 29 § U.S.C. 1111(2)(A)(i) & (ii).
      4. The employer must have 50 employees in a 75 mile radius. 29 U.S.C. §§ 2611(2)(b)(ii) and (4)(A)(i).
   3. FMLA Interference and Retaliation Claims
      1. FMLA requires that an employee be reinstated to the same or an equivalent position. 29 U.S.C. § 2614(A) and (B).
      2. Interference Claims
         1. In the Ninth Circuit, an adverse action against an employee for taking a protected FMLA leave states a claim for interference. 29 U.S.C. § 2615(a)(1).
         2. Characterizing an employee’s absence as personal leave, rather than family leave under FMLA, constitutes interference. Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003).
         3. When an employee is subject to “negative consequences . . . simply because he has used FMLA leave,” the employer has interfered with the employee’s FMLA rights.” Xin Liu, supra, at 1136 (citing Bacheider 259 F.3d. 1112, 1124 (9th Cir. 2001)).
         4. Interference claims generally do not require proof of discriminatory or retaliatory intent. Xin Liu, supra, at 1134.
      3. Retaliation Claims
         1. An employee who opposes any employment practice protected under FM LA, and is met with an adverse action, states a claim for retaliation or discrimination. 29 U.S.C. § 2615(a)(2), and (b). Xin Liu, supra, at 1136.
         2. Retaliation claims generally require proof of discriminatory intent.
   4. CFRA: Family Leave Under California Law
      1. CFRA provides employees with the right to take a leave of absence for up to 12 weeks in a 12 month leave year. Cal. Gov’t Code § 12945.2(a).
      2. CFRA’s leave covers the birth of a child or placement of a child for adoption or foster care, as well as one’s own or a family member’s serious health condition. Cal. Gov’t Code § 12945.2(c)(3).
      3. CFRA does not cover an employee’s own disability leave due to pregnancy or related conditions. Cal. Gov’t Code § 12945.2(c)(3)(C). California law protection is provided under a separate act, Cal. Gov’t Code § 12945(a). See Section IV. B. below.
      4. CFRA requires 50 or more employees within a 75 mile radius. Cal. Gov’t Code § 12945.2(b)(c)(2).
      5. The employee must work for 12 months and 1250 hours within those 12 months. Cal. Gov’t Code § 12945(a).
   5. CFRA Interference and Discrimination/Retaliation Claims
      1. Employer must grant a covered employee’s request for family and medical leave. Cal. Gov’t Code §12945.2(a).
      2. The employee should generally be returned to the same or a comparable position. Cal. Gov’t Code § 12945.2(a).
      3. It is an unlawful employment practice to refuse to hire, discharge, or discriminate against any individual for exercising his/her right to family care and medical leave. Cal. Gov’t Code § 129452(e)(1)(1).
      4. This anti-discrimination provision prevents employers from counting CFRA leave as an absence under a no-fault attendance policy.- Avila v Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237 (citing 2 Cal. Code Regs. § 77297.10).
      5. It is an unlawful employment practice to refuse to hire, discharge or discriminate against an individual for giving information or testimony regarding his/her/other’s family care or medical leave. Cal. Gov’t Code § 12945.2(L)(2).
4. Pregnancy Discrimination Claims
   1. Pregnancy Discrimination Act
      1. The federal Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), provides a leave of absence for the pregnancy employee’s own medical condition related to pregnancy.
      2. If the employer provides longer leaves of absence for other disabilities, employees with pregnancy leaves of absences must be entitled to the same length of leave. Troupe v May Dept. Stores Co., 20 F.3d 734, 738 (7th Cir. 1994).
      3. Discrimination Based Upon Pregnancy
         1. 42 U.S.C. § 2000(e)-2(a) prohibits discrimination based upon sex, and 42 U.S.C. § 2000e(k) defines sex to include pregnancy and related conditions.
   2. FEHA’s Prohibitions Against Pregnancy Discrimination
      1. The California Fair Employment & Housing Act prohibits pregnancy discrimination. Cal. Gov’t Code § 12926(j) and (p). The Act also provides for protected leaves of absence of up to four months for disability related to pregnancy. Cal. Gov’t Code § 12945(a).
      2. If an employer provides more than four months of leave for other temporary disabilities, then it should do the same for pregnancy. 2 Cal. Code Regs. § 7291.7(b).
      3. An employee is generally to be reinstated after this leave to the same position. Cal. Code Regs. § 7291.9.
      4. Reasonable accommodations should be provided to pregnant employees. Cal. Gov’t Code § 12945(b).
5. Disability Discrimination Claims under the ADA and FEHA
   1. Americans with Disabilities Act (ADA)
      1. The Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq. prohibits discrimination against a qualified individual with a disability.
      2. This includes a record of a disability. 42 U.S.C, § 12102(1).
      3. This also includes employees regarded as having a disability. 42 U.S.C. §12102(1)(C).
      4. The employer must have 15 employees. 42 U.S.C. § 12111(5)(A).
   2. Disability Discrimination Under the California Fair Employment & Housing Act
      1. The Fair Employment & Housing Act, Cal. Gov’t Code § 12900 et seq. prohibits discrimination against a qualified individual with a disability or medical condition (cancer).
      2. This includes perceived disabilities (Cal. Gov’t Code § 12926.1(b)); record of cancer (Cal. Gov’t Code § 12926(h)(1)); record or history of psychological disorder (Cal. Gov’t Code § 12929(i)(3)).
      3. FEHA is generally a more comprehensive and liberal statute than the federal act.
      4. This Act requires that the employer have five employees. Cal. Gov’t Code Section § 12926(d).
   3. Leaves of Absences as a Reasonable Accommodation
      1. Under FEHA and the ADA, leaves of absence, including intermittent leaves of absences, can be a reasonable accommodation for a disability. Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001); Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245.
      2. Length of leave is not set in stone as with family leave or pregnancy leave, but on a case by case analysis. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).
6. Associational Claims: Association with Disabled Person
   1. Association with Disabled Person Under ADA
      1. The ADA defines “discriminate” to include “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4).
7. Race Discrimination
   1. Where the facts indicate that race was a motivating factor in the adverse (employment) decision, a claim for race discrimination under federal or state law may be pursued.
      1. Federal prohibition against discrimination based upon race, color, religion, national origin and ancestry. 42 U.S.C. § 2000e-2.
      2. State law prohibits discrimination based upon race, color, religion, national origin and ancestry. Cal. Gov’t Code §§ 12926(j), 12940(a).
   2. Racial stereotypes that intersect with family responsibilities are actionable under Title VII and FEHA as race discrimination (i.e., belief that a racial group has more children and more family responsibilities, and therefore employees of such a race will have less time to devote to their work).
8. Retaliation Claims
   1. Where an employee is terminated for protesting or opposing discriminatory conduct, filing a complaint, testifying or participating in EEOC or DFEH proceeding, a retaliation claim can be stated.
      1. An employee who protests her employer’s statement (about her or others) that working moms miss too much work, can state a claim for retaliation (i.e., fired in retaliation for opposing gender stereotyping of working moms)
      2. FEHA prohibits retaliating terminations for protesting discriminatory conduct under FEHA. Cal. Gov’t Code § 12940(h).
      3. Title VII prohibits retaliation. 42 U.S.C. § 2000e-3(a).
      4. ADA prohibits retaliation. 42 U.S.C. § 12203.
      5. As set forth in Section VII, FMLA and CFRA have anti-retaliation (discrimination) provisions.
9. Marital Status
   1. FEHA Prohibits Discrimination Based Upon Marital Status. Cal. Gov’t Code § 12940(a).
      1. Where an adverse action is taken due to stereotyped notions regarding single parents (for example, single parents do not have enough support and therefore won’t be able to work as hard as married parents), this would violate FEHA’s prohibition against marital status discrimination. Cal. Gov’t Code § 12940.
10. Public Policy Claims
    1. Public Policy Claims in General
       1. An employee can state a claim for wrongful termination in violation of public policy where he/she is fired for reasons that violate public policy.
          1. Public policies are generally policies where “a duty inures to the benefit of the public at large rather than a particular employer or employee.” Foley v. Interactive Data Corp. (1988) 47 Ca1.3d 654; Stevenson v. Superior Court (1997) 16 Ca1.4th 880.
          2. The basis of public policy should generally be grounded in federal or state constitutional or statutory provisions. Grantt v. Sentry Ins., (1992) 1 Ca1.41h 1083.
          3. Public policies are generally fundamental or substantial. Stevenson, supra, Gantt, supra.
    2. Public. Policies Protecting Caregivers
       1. Statutory basis for public policies may be found in federal or state statutes.
       2. Labor Code § 233 permits an employee to use some of his/her sick leave to attend to an ill child, parent, spouse or domestic partner.
          1. Query whether fact that enforcement provisions are by the California Labor Commissioner, with limited specified relief, impacts ability to provide a basis for a public policy claim. Cal. L.C. § 233(d) & (c).
       3. Termination for Taking Family Leave Violates Public Policy
          1. Violation of CFRA creates cause of action for wrongful termination in violation of public policy. Nelson v. United Technologies, 74 Cal.App.4th 597, 612 (1999).
          2. Violation of FMLA also states cause of action for wrongful termination in violation of public policy. Xin Liu v. Anrway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003), supra, at 1138.
       4. Look at all discrimination claims set forth in this outline.
    3. Advantages
       1. Statute of limitations is two years, and this may be advantageous.
       2. No minimum number of employees generally required but the court may follow the statutory requisition with sonic claims. Jennings v. Marralle (1994) 8 Ca1.4th 121.
11. Breach of Contract
    1. California Contract Law
       1. A contract is an agreement between the parties express (oral or written), or implied in fact. The contract could include agreements regarding leaves of absence, flexible work hours and/or guarantees regarding number of hours, duties and circumstances for termination. See generally, Foley v. Interactive Data Corp. (1988) 47 Ca1.3d 654.
       2. Employees should look to policies and procedures, promises made, practices or actions, for possible enforceable contractual rights. Foley, supra.
       3. A claim may be stated for breach of the employer’s own policies and procedures. Guz v. Bechtel (2000) 24 Ca1.4th 317.
       4. Union agreements may also contain enforceable rights, enforceable through the grievance process, rather than breach of contract claim.