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by Lee Bantle / No comments

Those with Family Responsibilities Have Workplace Protections in the Era of COVID-19

By David Krauss

Since the city’s schools and daycare centers were closed in March 2020, working New York parents have faced an often-impossible balancing act: performing their job responsibilities while simultaneously caring for and overseeing the “distance learning” of their homebound children. As Mayor DeBlasio has confirmed, New York City public schools will not be fully reopening for in-person classes this Fall. While from a public health standpoint a sensible (if not obvious) decision, for many working parents, this is less than welcome news.

While I myself am not a parent, based on a rigorous study of my own childhood, I know that even with perfectly behaved little angels, parenting is a round-the-clock job that has its challenges – challenges that are more than balanced out by its many rewards, or at least so I’m told. (Thanks, Mom and Dad!) Add-in the current global health crisis and the resulting closure of schools and offices throughout New York, and many working parents (as well as those with other caregiving responsibilities) are struggling to juggle their competing responsibilities. A recent article in the New York Times described the situation more bluntly: In the Covid-19 Economy, You Can Have a Kid or a Job. You Can’t Have Both.

Making matters worse, given the layoffs and furloughs caused by the pandemic, New Yorkers with caregiving responsibilities who are lucky enough still to be employed are wondering if and when the axe will fall, and what that might mean for their families. (COVID-19’s toll on the labor market has been well-documented: in the New York City area alone the unemployment rate jumped from 3.8% in May 2019 to a whopping 18.2% in May of this year.)

Recently passed legislation at the state and city level, together with recent interpretations of existing federal law, provide protection for employees whose family responsibilities are used against them by their employers to justify their termination, furlough, or denial of career advancement or increased compensation. As described below, these laws prohibit employers from assuming that employees with caregiving responsibilities are less committed to their jobs than employees without such responsibilities and taking adverse actions against them on the basis of that belief.

This Article discusses the laws that protect employees from familial responsibilities discrimination (“FRD”) at the federal, state, and city level. Part I provides an overview of FRD. Part II continues by considering FRD in the era of COVID-19.

I. FRD: What It Is; What It Isn’t

In recent years, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) were amended to add protections against workplace discrimination on the basis of familial status (styled “caregiver status” under the NYCHRL). See N.Y. Exec. Law. § 296(1)(a); N.Y.C. Admin. Code § 8-107(1)(a). Designed to guard against the stereotype that employees with family responsibilities are less committed to their careers than those who lack such responsibilities, these laws prohibit employers from taking adverse actions against their employees on the basis of that stereotype.

Guidance issued by the New York State Division of Human Rights and the New York City Commission on Human Rights makes clear that an employer cannot discriminate against an employee based on the employer’s belief that someone with children will not be a reliable employee or that a mother should forego a career to stay at home with her children. More generally, the guidance notes that discrimination on the basis of an employee’s status as a parent is also a form of FRD. (Although both laws focus on child-care responsibilities, the NYCHRL also provides protection for those employees who have caregiving responsibilities with respect to certain disabled relatives – including parents, grandparents, grandchildren, and siblings – who reside with the caregiver.)

Notably, neither law requires that employers accommodate their employees’ caregiving responsibilities. In other words, employers are not required to allow employees to work reduced hours, go on flex-time, or work remotely simply because they have caregiving responsibilities. However, the laws do prohibit employers denying employees with caregiving responsibilities access to and/or use of benefits (such as teleworking under a company’s remote work policy) that normally offered to their other employees.

FRD is also prohibited under federal law. Although the relevant federal anti-discrimination laws do not expressly identify FRD as a prohibited form of discrimination, courts have determined that it is a form of unlawful gender discrimination. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004), is illustrative.

In that case, plaintiff, an elementary school psychologist on a three-year tenure track, gave birth during her second year of employment at the school. Upon her return from maternity leave, plaintiff’s commitment to her job was repeatedly questioned. Among other things, plaintiff was told that her job was “not for a mother” and that it was “not possible for her to be a good mother and have this job.” Id. at 115. Moreover, whereas during the first two years of her employment plaintiff received outstanding performance reviews, following the birth of her child, plaintiff’s performance was sharply criticized by the school’s principal and the school district’s director of personnel. The principal and director of personnel ultimately recommended that plaintiff’s tenure application be denied, which, on the basis of those recommendations, it was. Id. at 116.

Plaintiff brought suit against the school district, the district director of personnel, and the school principal under 42 U.S.C. § 1983, alleging that the reason she was denied tenure (and her employment thus terminated) was because defendants believed that she could not be both a mother and a devoted employee.

Reversing the district court’s grant of summary judgment for defendants, the Second Circuit determined that the familial responsibilities discrimination alleged by plaintiff was a form of illegal gender stereotyping. Id. at 117 – 121. Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that the failure to conform to gender stereotypes is a form of gender discrimination), the court found that the principle of Price Waterhouse “applies as much to the supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype.” Id. at 119.

Notably, the court rejected defendants’ argument that “stereotypes about pregnant women or mothers are not based upon gender, but rather, “gender plus parenthood,” thereby implying that such stereotypes cannot, without comparative evidence of what was said about fathers, be presumed to be “on the basis of sex.” Id. at 120. While observing evidence concerning the school’s treatment of its male employees who were fathers might have strengthened plaintiff’s case, the court stressed “that the ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace” and that “discrimination against one employee cannot be cured, or disproven, solely by favorable, or equitable, treatment of other employees of the same race or sex.” Id. (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).

Recognizing the trend in federal caselaw (including Back) concluding that FRD is an impermissible form of gender discrimination, the EEOC issued guidance entitled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

II. FRD in the Age of COVID-19

For a host of reasons – including, sadly, the politicization of the virus caused by this Administration’s ill-prepared, ill-conceived response to it – it appears that our battle with COVID-19 will rage on indefinitely. And though as of the date of this Article new cases are down in New York State, it is impossible to know for how long that trend will continue. It is therefore likely that working New Yorkers will continue having to balance their job and caregiving responsibilities in this difficult environment for the foreseeable future.

With that in mind, working New Yorkers should be advised of the following:

  • An employer cannot refuse to hire you because you have a family and/or caregiving responsibilities;
  • Your employer cannot consider your family responsibilities in deciding who to terminate or furlough;
  • While your employer is not required to accommodate your request for an alternate work schedule (i.e., reduced or flexible hours, remote work) because you have a family and/or caregiving responsibilities, your employer cannot deny your use of those work arrangements if they are provided to your colleagues who do not have family responsibilities; and
  • An employer who wrongly perceives you to be less committed and thus less worthy of advancement or increased compensation just because you have family responsibilities is violating your rights under law.

If any of the above situations apply to you, you should consult with an experienced employment attorney.

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