Family Responsiblity Discrimination and Employment Law in Marin County

Today, there are more than 40 million people age 65 or older in the United States. This number is projected to grow to approximately 72 million by 2030. What does this have to do with labor and employment law in Marin County? Marin, according to the 2010 Census Bureau, now has the oldest median age in the California Bay Area, with approximately 61,454 citizens 60 years old and above. These changes in demographics mean there will be more employees with elder care responsibilities than ever before, and many will miss work because of it. Unfortunately, employees trying to care for their parents or spouses face greater challenges than parents with child care responsibilities. Elder care, unlike child care, is often undertaken with very little warning. It can also be difficult to predict how long care-taking responsibilities will last. In today’s tough job market, many employees may feel pressured to hide their family caregiving responsibilities from their employer because they fear that being labeled as a caregiver may make them vulnerable to family responsibilities discrimination.

In addition, while family status discrimination is not expressly prohibited by Title VII or California law (although the California legislature has introduced several bills to do so that are currently stalled), it’s essentially prohibited via the operation of other state and federal statutes. As a result, employers should also beware that they don’t appear to discriminate on this basis. While employer-defendants in FRD cases commonly argue that the plaintiff is alleging parent or caretaker discrimination, which is not proscribed by Title VII, many courts use either traditional direct evidence of discrimination or newer stereotyping evidence to find that parents and other caregivers—usually mothers—are discriminated against because of their sex and parental status. The Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA) also support claims of FRD. In addition, the EEOC recently issued new enforcement guidance on the topic.

In summary, while family status is not protected per se, practically speaking FRD is outlawed via the operation of other statutes. Employers should therefore be wary of even appearing to discriminate based on this status. Employees should not hesitate to inform employers when they feel they are being subjected to discriminatory treatment.