What is family responsibility discrimination and is it illegal?
Today, many workers have caregiving responsibilities for children, older adults, or sick or disabled family members. Unfortunately, those workers sometimes face discrimination in the workplace because employers (i) do not want employees' familial responsibilities to affect the employers' bottom line, (ii) have preconceived notions about who should be caring for family members, (ii) mistakenly believe that caregivers' work will be affected by their familial responsibilities, and/or (iv) simply do not understand their legal obligation to provide leave in certain circumstances. Regardless of the reasons for the discrimination, under certain circumstances, it is unlawful to discriminate against employees with family responsibilities. Indeed, that was the basis for a recent case in Bergen County.
Tenafly Pediatrics, which operates six offices in North Jersey, including Fort Lee, Paramus, Oakland, and Tenafly, recently agreed to pay $45,000 to settle the claim of a former employee who sued the medical group for wrongful termination. Allison Blair, a billing coordinator with the pediatric group for more than seven years, was fired after taking time off to care for her terminally ill father. Before beginning what wound up being a 9 day leave, Ms. Blair had informed her supervisors about her father's serious medical condition and her intention to take legally protected leave pursuant to New Jersey's Family Leave Act. Upon returning to work after her father's death, Ms. Blair was fired for her "unexcused" absence.
The Family and Medical Leave Act & New Jersey Family Leave Act
Both the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) provide certain employees with up to 12 weeks of unpaid job-protected leave in a twelve month period to care for certain classes of seriously ill relatives or for the birth or adoption of a child. The FMLA also provides such unpaid, job-protected leave for employees' own serious health condition or to deal with certain qualifying situations arising from military service, such as deployments, of employees' spouses, children or parents. Whether or not particular employees are covered by either the FMLA and/or NJFLA depends upon various factors including, but not limited to, whether their employers employ at least 50 employees within a 75 mile radius of the location where the employee seeking leave works and whether the employee seeking leave has worked a minimum number of hours during the prior twelve month period. Employees who are entitled to the protections of either the FMLA or NJFLA are also protected from retaliation including, but not limited to, wrongful termination for exercising their rights under those laws.
Tenafly Pediatrics' Claims
The medical group claimed, in part, that Ms. Blair failed to complete certain paperwork and follow proper procedures by not submitting a state FL-1 form. That form, however, is used to provide employees on family leave with some level of income during their leave and is not required to simply take leave. In fact, verbal notice of a planned absence is sufficient to trigger employers' obligation to provide legally protected leave.
Although the pediatric group admitted no wrongdoing in entering into the settlement, it must now pay Ms. Blair $45,000 to settle her claim. The Director of the DCR made clear that "employee[s] should not have to be forced to choose between keeping [their] job[s] and tending to the serious health condition of a family member". He also made clear that "New Jersey's family leave laws were created to maintain the integrity of the family unit".
What is Caregiver Discrimination?
Family Responsibilities Discrimination, which is also sometimes referred to as caregiver discrimination, is not necessarily classified as unlawful in and of itself; however, under certain circumstances it may constitute violations of the FMLA or NJFLA as was the case with Ms. Blair. Family Responsibility Discrimination may also be unlawful under New Jersey's Law Against Discrimination (LAD) if the discrimination is targeted toward certain workers because of protected characteristics. Violations of the LAD centering on familial responsibility discrimination arise most often in situations where certain workers, for example female employees, are treated less favorably than their male colleagues or denied certain opportunities because of the erroneous perception that women will not work as hard as men given their greater family obligations. In short, when pregnant women, mothers and/or fathers of young children, and employees with aging parents, sick spouses or partners or children are rejected for hire, passed over for promotion, demoted, harassed, and/or terminated - despite being qualified for the job and/or good performance - it may be considered caregiver discrimination and, more importantly, under certain circumstances, violate the FMLA, NJFLA or LAD.
If you believe you have been the victim of caregiver discrimination, discriminated or retaliated against for requesting FMLA or NJFLA leave or exercising your rights under those laws, you should consult with a qualified employment attorney.