Reviewing Law: Family care-giving obligations

By Astrid Rachelle Fiano, Esq.

New York Times Magazine has carried an excellent article discussing the potential new cause of action in employment discrimination law: family-care giving obligations.

The article provides insight into the necessity for such a law (especially for those not protected by the Family Medical and Leave Act) and the drawbacks as well. The link is a good companion for the sound bite in NPR’s Marketplace, where Jack Tuckner participated in an important story on the same subject.

The NYT article follows:

Family-Leave Values By EYAL PRESS Published: July 29, 2007

When Karen Deonarain was discharged from Prince George’s Hospital Center in Maryland following the birth of her daughter, Razia, several years ago, the status of her job did not rank high on her list of worries. “My main concern was the baby,” she said one recent afternoon, as a heavy rain drenched the sidewalks outside the cafe where we had arranged to meet. Deonarain was 30 when her daughter was born. A small, heavyset woman with a gentle voice and a reserved manner, she worked at the time as a senior claims examiner for a company called Computer Literacy World, which does contract work in data entry and computer-system configuration. She liked the job, though she was in no condition to return to the office after her discharge. The pregnancy had been a difficult one, ending in a weeklong marathon of unnerving medical consultations and impromptu prayer sessions that began when Deonarain’s water broke 16 weeks earlier than expected. At one point, her doctor warned her that a baby born so prematurely stood a 50 percent chance of suffering from cerebral palsy. Days later, her 1-pound-10-ounce newborn was wheeled into the neonatal intensive care unit.

Deonarain remembers her ordeal being made somewhat easier by the sympathy extended to her by her employer. On Jan. 7, 2004, the day after she was admitted to the hospital and told she should remain there until delivering her child, she says she spoke to her supervisor, a woman named Gwen Tolbert. They kept no written record of their conversations, and the company disputes Deonarain’s version of the events. But according to Deonarain, Tolbert told her not to worry and indicated that the company understood the baby’s fragile health would likely prevent her from coming back to work until April. The two women chatted again a week later, after Razia was born. This time, Deonarain says, Tolbert congratulated her and said she had already arranged to have some sick leave transferred to her. “I felt really reassured,” Deonarain told me.

It was almost 10 weeks before Razia was discharged from the hospital. It took considerably less time for Deonarain’s sense of reassurance to turn into bewilderment. One morning about six weeks after giving birth, she received a phone call from the mortgage company with which she and her husband had been working to refinance their home. A loan officer informed her that, according to information received from Computer Literacy World, she was no longer on the payroll there which, if true, meant the refinancing loan could not be approved. Deonarain told the loan officer not to worry, since she was sure the information was erroneous. After they finished talking, she called Gwen Tolbert. But, Deonarain says, Tolbert told her there had been no mistake: her job had been terminated because she’d failed to contact the company since Jan. 5, 2004, violating a rule requiring workers to account for any absence within three days.

Deonarain listened, amazed: she had been at work on Jan. 6, she says, and had spoken to Tolbert herself from the hospital on two occasions after that date. She says she had also been given every indication the company understood she would need time off after the pregnancy. (Computer Literacy World would not comment on the case, and Tolbert did not return calls, but in sworn statements the company has said that after the baby was born, Deonarain promised to let Tolbert know within a few days when she would be returning to work, and that she was fired after Tolbert didn’t hear from her for five weeks.) Deonarain remembers being on the phone, pleading for sympathy. “I was like, “˜Please, I need my job I have a premature child.’ “ Tolbert said that she was sorry, but that the job had already been filled; Deonarain recalls being told that she was welcome to apply for another position, at a lower salary.

Deonarain did something else instead: after overcoming her initial shock, she got in touch with the D.C. Employment Justice Center, an organization based in Washington that she had heard defended workers’ rights. The center referred her to a couple of lawyers, one of them a Maryland attorney named Daniel A. Katz. As he listened to the details of the story, Katz was flabbergasted. He soon started searching about to find grounds for a lawsuit.

Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.

But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities becoming pregnant, needing to care for a sick child or relative has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

The flood of cases reflects not just the increased presence of women in the workplace but also the growing difficulty Americans of all social backgrounds seem to be having in balancing the demands of work and family. Unlike so-called “glass ceiling” cases involving women barred from the top rungs of a handful of elite professions, the plaintiffs in these new work-family disputes have ranged across the occupational spectrum, from physicians to police officers to grocery clerks. While not all have become millionaires, more than half have prevailed in court a success rate significantly higher than that of more conventional employment-discrimination cases, which is below 20 percent. Beyond causing headaches for their employers, the lawsuits are serving notice that the battle over “family values” is no longer just about gay marriage and abortion: it’s also about workplace attitudes that some advocates believe do significantly more to undermine family life than those controversial practices do.

No person has made this argument with more vigor in recent years than Joan C. Williams. A professor at the University of California’s Hastings College of the Law in San Francisco, Williams, 55, is tall and slender, with reddish-brown hair and something approaching rock-star status among the small but growing network of lawyers and scholars who litigate or study family-responsibility discrimination cases. I first met Williams in April at the headquarters of the Equal Employment Opportunity Commission, in Washington, where she’d been invited to testify at a hearing on balancing work and family. It was the day after the student massacre at Virginia Tech, and the session opened with a moment of silence. Then Stuart Ishimaru, an E.E.O.C. commissioner, thanked the various panelists for taking the time to share their expertise with the agency, singling out Joan Williams. She had flown to Washington the previous day; she would soon be off to Sacramento, where she was scheduled to testify before the California Legislature, and after that to Colorado, to appear before the National Association for Law Placement.

Williams has been racing across the country giving such speeches since 2000, the year her book “Unbending Gender” appeared. In the book, which set in motion the legal trend that now consumes much of her time, Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.” At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households.

At a Starbucks after the E.E.O.C. hearing, as she sipped tea and picked haphazardly at a brownie, Williams told me she wasn’t sure when she wrote the book what the best remedy was. One possibility was legislation subsidized child care, generous parental-leave policies of the sort many European countries have. Another was for employees to take legal action, an idea she described in the book’s most provocative chapter. To show how discrimination can harm caregivers, Williams told the story of a lawyer with sterling performance reviews who was passed over for a promotion because she was a mother; management had assumed she wouldn’t be interested and promoted an unmarried woman instead. Even though the position was not given to a man, a court agreed the firm’s action might constitute sex discrimination, not least because numerous fathers had received such promotions. Negative assumptions about the capabilities of women with children pervade the marketplace, Williams averred, and can violate Title VII of the Civil Rights Act even when employers insist their actions are not motivated by sexism.

“Unbending Gender” struck a nerve soon after its publication, Williams found herself fielding “a zillion invitations to speak” but its author admits she had “no idea” whether the legal theory she had sketched out might catch on. There were plenty of skeptics, which is not surprising. Unlike being black or female, after all, becoming a parent is a choice, one that often limits an employee’s availability. As she traveled across the country, Williams heard this frequently from feminists convinced that courts would side with businesses in such disputes. But she heard something different from the lawyers she met, who seemed equally certain jurors would sympathize with workers punished simply for trying to be responsible caregivers. Meanwhile, with each passing day, more lawsuits kept being filed. Williams soon established the Center for WorkLife Law, which emerged as the place to go to learn more about the subject not only for scholars and journalists but also for employees, who started calling its hot line to find out how they, too, might file a claim. It was, for Williams, a bracing moment, as much for personal reasons as for professional ones. After attending Harvard Law School, she told me, she worked for several years as an attorney. Then she had a daughter, Rachel, and found herself staring at the quandary so many women face. “I got sort of obsessed with the issues,” she recalls, “because they were framing my life.” Williams also thought back on occasion to her grandmother, one of the first women to attend Johns Hopkins Medical School. Before graduating, she married and moved with her husband to a new city. When she tried to complete her degree, a medical-school dean told her that a woman should be ashamed of nurturing such ambitions. After that, Williams says, “she gave up.”

Williams viewed the lawsuits as a way to complete an unfinished revolution. But she also recognized they could be perceived another way, a point she pressed on feminist colleagues who saw in them a noble but losing cause. “I said to them: “˜You’re thinking of these as very edgy gender-discrimination cases. In fact, they’re family-values cases.’ “

This view would meet with no objection from a former Maryland state trooper named Kevin Knussman, who does not fit the conventional image of a plaintiff in a sex-discrimination case. Knussman, who is 50, has close-cropped brown hair shaved high above the ears and a neatly trimmed, graying mustache. He lives in the town of Easton, on Maryland’s Eastern Shore, in a saltbox-style house with an American flag out front and framed passages of Scripture on the walls inside. On the day I visited him recently, he wore a short-sleeved shirt emblazoned with the logo of the Easton little-league softball team, which he coaches.

Knussman is a churchgoing Christian and a conservative Republican. In 1999, he also became the first person to prevail in a sex-discrimination lawsuit filed under the Family and Medical Leave Act. A jury awarded him $375,000 in damages, although a judge subsequently reduced the amount to $40,000. The suit was filed shortly after his wife, Kimberly, became pregnant and began to suffer from an array of medical complications, including pre-eclampsia, a potentially life-threatening condition. Wishing to be there to support her, Knussman wrote to his boss at the Maryland State Police to request four to eight weeks of leave, to which he was entitled under the F.M.L.A. He was told there was “no way” he could take more than two weeks. Later, after his wife gave birth to a baby girl, he asked for 30 days off, as is available to primary caregivers under Maryland law. A personnel manager for the state police, where he had worked for 17 years, denied the request, telling him, “Unless your wife is in a coma or dead, you can’t be primary care provider.” The same person also told him that God made women to have babies.

Knussman chuckled as he recalled these statements. But the experience was considerably less amusing at the time. The stress of being forced back to work when he felt his family needed him was shattering. Caught between the demands of a job he loved and his family, he plunged into depression, he says, and briefly contemplated suicide. “I would come home after work and Kim was asleep on the couch, and my daughter was crying, and I felt it was really hindering Kim’s ability to heal and recuperate,” he told me. “It certainly didn’t make me feel good I had to abandon my family in order to collect my paycheck.”

The case was not without its incongruities. Representing Knussman in court was the American Civil Liberties Union, an organization that would most likely not win any popularity contests at the Calvary Baptist Church near Easton, where Knussman and his family attend services. At one point, he was invited to the National Institutes of Health, in Bethesda, for a photo op with President Clinton to celebrate the anniversary of the F.M.L.A.

“I told the woman who called, “˜You know I’m a conservative Republican,’ “ he recalled, laughing.

“I know you won’t embarrass us like that,” she replied.

He showed me the photograph with a proud smile spread across his face. When I asked whether he had any regrets about taking legal action, he shook his head. “They had hurt my family significantly, especially my wife. To hurt my family it really was important to rectify.”

The plaintiffs in roughly four-fifths of the work-family lawsuits filed thus far have been women. As Knussman’s case shows, men, too, may find themselves subjected to stereotypes about their domestic responsibilities by employers who feel they shouldn’t have any. What women alone appear to encounter is a powerful set of negative assumptions associated with motherhood. The rise of lawsuits in recent years has coincided with a new body of research, much of it produced by a scholarly project called the Cognitive Bias Working Group. One member of the group is Shelley Correll, a sociologist at Cornell. A few years ago, Correll was poring over labor-market data and noticed that while the gap between the wages of men and women had narrowed, the gap between mothers and everyone else remained wide. She wanted to understand why. As an experiment, Correll and other researchers asked volunteers to evaluate a pool of equally qualified male and female job applicants. On some résumés, a clue signaled that the applicant was a parent. Correll also sent 1,276 résumés for entry-level and midlevel marketing jobs to 638 real employers.

The results, as reported in the May 2007 issue of The American Journal of Sociology, are striking. Among the volunteers, mothers were consistently viewed as less competent and less committed and were held to higher performance and punctuality standards. They were 79 percent less likely to be hired and, if hired, would be offered a starting salary $11,000 lower than nonmothers. Fathers, by contrast, were offered the highest salaries of all. Meanwhile, in the test run with real-world employers, the hypothetical female applicants without children were more than twice as likely as equally qualified mothers to be called back for interviews. Correll’s findings echo a discovery made by the psychologist Amy Cuddy. Cuddy asked volunteers to evaluate four imaginary professionals: a childless female, a childless male, a mother and a father. All these professionals had identical experience and educational backgrounds. Yet the mothers were given the lowest competency ratings, by both male and female evaluators, and were least likely to be recommended for hiring and promotions.

Some employers, lawyers say, may be tolerant, even welcoming, of an employee who bears one child, only to balk when discovering she has become pregnant again. Attorneys who handle such cases refer to this as “the second-baby syndrome.” Other times, tension may arise when another factor say, a disability enters the picture. This is what Lucia Kanter believes happened to her. An attorney from San Francisco, Kanter started working several years ago at the Administrative Office of the Courts, the policy-making body of the California judicial system. She loved the job and, she says, was well regarded by her superiors. She also thought she would finish her career there, in part because it seemed like an accommodating place for working parents. After the birth of her first son, Julian, in January 2004, Kanter was given a generous (albeit unpaid) 11-month leave. She was then allowed to return on a four-day-a-week, 80 percent schedule. A year and a half later, she had a second son, Thanael, and this time was given six months off.

Shortly after Thanael was born, however, tests confirmed something that Kanter and her husband had begun to suspect: Julian, their older child, was autistic. They now faced the daunting challenge of raising a child with a disability. When Kanter learned this, she says she wrote to her manager to ask whether she might return, at least initially, either on a 60 percent schedule or an 80 percent schedule with a rotating day off, so she could attend Julian’s therapy sessions. Her request, she says, was denied. Then she asked for an extended leave of absence but again was turned down. Finally, she says, she suggested resuming her prior schedule, but with some additional time off so she could hire a second nanny. She figured the agency would at least be open to discussing this, but it said no.

Instead, she says, she received a termination letter.

She was stunned. “If my jaw could have dropped to the floor, it would have,” she told me when I visited her recently at her home in San Francisco. Now, invoking both Title VII of the Civil Rights Act and the Americans With Disabilities Act, she is suing her former employer for discrimination, a decision she said she agonized over: “I have a child with 14 therapists, and another young child I don’t need this headache.”

Of course, her colleagues at the Administrative Office of the Courts may have had reason to worry about that very fact, and to wonder whether her hands might be too full to handle an ordinary workload. (The agency would not address the specifics of the case, but in court papers and in a statement it denied all wrongdoing alleged by Kanter.) In non-F.M.L.A. cases, if employers can show an adverse action was taken for legitimate business reasons if a worker’s presence in the office is essential to a company’s operations, say they often can persuade a judge or jury to spare them liability, particularly if they can point to a positive track record toward the protected class of employees. Kanter acknowledged there were worse places for women with children to work, though she also recalled how, at an office baby shower, she overheard a high-ranking superior tell a female attorney: “So this is it, right? There aren’t going to be any more pregnant women after this?”

Even so, when Kanter first sat down with a lawyer after her dismissal, she said, she pinned her hopes not on a lawsuit but on a settlement that would reinstate her job, which she still describes with unrestrained fondness. At one point, she ushered me into her living room, flipped on the computer and inserted a DVD of the training sessions she used to conduct at work (where, coincidentally, one of her main responsibilities was to counsel members of the court system about employment law). Her black Lab lay curled in the corner. Her kids were asleep upstairs. As the video played, Kanter gazed at the monitor with a look of pure longing in her eyes. She was suing only because she had run out of options, she said with a heavy sigh, and because she had come to identify with working mothers who’ve been “pushed or nudged out of their jobs.”

Until recently, prevailing in such a case likely would have required showing that a man in the same situation was treated differently. In the past, the absence of a so-called “male comparator” had often led courts to dismiss sex-discrimination claims even when evidence of stereotyping seemed to exist. But this is by no means certain anymore. In 2004, in the case of Back v. Hastings-on-Hudson, the United States Court of Appeals for the Second Circuit ruled that a school psychologist who claimed she was denied tenure because she was a mother did not need a comparator to prove she had been unlawfully stereotyped.

The Back opinion was drafted by one of the nation’s most liberal courts. But conservative judges have issued plenty of pro-plaintiff rulings as well. In 2005, the United States Court of Appeals for the Fourth Circuit, in Virginia considered among the most conservative in the country upheld $520,000 awarded to an attorney who claimed she was mistreated for being a working mother, and it ordered a lower court to consider additional punitive damages. Perhaps the most surprising decision to date emerged out of Nevada, in a case involving a state social worker named William Hibbs, who filed a lawsuit under the F.M.L.A. when his wife suffered a near-fatal car accident and he was ordered back to work after his employer said he had exhausted the leave the state offered. The case made its way to the Supreme Court, which, in 2003, affirmed Hibbs’s right to recover damages. It was a stunning ruling, both because the court had upheld states’ immunity from federal lawsuits in a string of prior cases and because, in his majority opinion, Chief Justice William Rehnquist underscored the importance of transforming workplace stereotypes. “The fault line between work and family,” he declared, is “precisely where sex-based overgeneralization has been and remains strongest.” The Second Circuit subsequently cited this language in the Back decision.

Had Chief Justice Rehnquist secretly been dropping in on meetings of the Cognitive Bias Working Group? A more likely explanation is that, like conservative judges in other cases, he saw the issue through the prism of family values and, perhaps, his own personal experience. At one point in his career, Rehnquist had to care for his own wife, who was terminally ill with cancer. As reported by Linda Greenhouse in this newspaper, his daughter, Janet, was a single mother who had a demanding job and apparently relied on his help on occasion. Several times during the term the Hibbs case was argued Rehnquist left the chambers early to fetch his granddaughters from school.

As surprising as such rulings have been, they have not convinced everyone that the proliferation of lawsuits is a good thing. Among those with reservations is Zachary Fasman, a partner at the New York office of Paul, Hastings, Janofsky & Walker who specializes in employment law. At the E.E.O.C. hearing back in April, Fasman testified that there is a danger the lawsuits will be used as a lever to force companies to change legitimate business practices (mandatory overtime, strict attendance rules) that not all workers can handle. Imagine the effect on the workplace, or the potential impact on America’s competitiveness, if United States courts ruled, for example, that companies could no longer dictate to their employees what time the workday began and ended. “I’m not against work-life balance who is?” Fasman later told me. “But the organization of the work force has always been left, to a large extent, to the discretion of the employer. So long as it doesn’t discriminate, where a business draws the line on these things depends on the nature of the business. You can’t rewrite the rules of the American workplace unless Congress does it.”

Some C.E.O.’s, however, have begun rewriting the rules on their own, spurred by the need to compete for high-quality employees. Several years ago, a businessman named Jim Johnson dropped in on a talk Joan Williams was giving in Denver, because his wife had heard about Williams and urged him to go. Afterward, he decided to reorganize the moving-and-storage company he runs. Today, many of Johnson’s employees log more hours at home than at the office. “I’ve got customer-service people working at home, order-entry people, long-distance dispatchers,” he told me. There has been a slight increase in productivity, he said, as well as another benefit: “This flex-hour, work-at-home group the turnover has been almost nonexistent.”

Clearly, though, not every company in America would embrace such a blueprint. In the meantime, as the number of workers suing their employers continues to grow, there is another danger that lawsuits will come to be seen as the vehicle of reform for problems that could be addressed more effectively through other means. By way of contrast, consider Britain, where, several years ago, the Blair government passed a flexible-work law that allows employees with children under 6 to request a reduction or rearrangement in their schedules. Employers can refuse but must explain their reasoning in writing. In Sweden, parents have the right to work a six-hour day until their children turn 8, at a prorated salary. Although some view such practices as a drag on the economy, policies mandating lengthy, paid parental leave and government-subsidized child care are the norm throughout Europe.

In “Unbending Gender,” Joan Williams wrote that “suing your employer is not the ideal mechanism of social change.” When we met not long ago in San Francisco, I reminded her of this passage. She smiled. Lawsuits “are the worst possible vehicle for social change,” she said, “except for nothing, and that’s where we are right now.” Williams pointed out that, in addition to the hot line for aggrieved employees, the Center for WorkLife Law advises a rapidly expanding number of employers and management-side lawyers. Of course, she would prefer that Congress pass legislation guaranteeing all workers paid sick leave, paid parental leave and access to affordable child care, she went on to say. “But what’s happening in public policy in this arena? It took more than a decade to pass the Family and Medical Leave Act, and it’s very limited. So when people say, “˜Well, the lawsuits are limited achievements,’ I say: “˜Well, compared to what? You’re not in Europe.’ “

Indeed, in the United States today, working parents receive supports and benefits that in much of the developed world would be considered scandalously ungenerous. Some unflattering comparisons with Europe were drawn at the E.E.O.C. hearing in April, where Williams suggested that even companies had reached the point of wanting more guidance from Washington about how caregivers should be treated. The message was evidently heard. In late May, the agency issued enforcement guidelines that for the first time spell out the myriad situations a police detective removed from high-profile investigations after she adopts a child, a technician and father denied a part-time posting reserved for a woman prohibited under existing law. The E.E.O.C. makes clear that personnel decisions implemented on the basis of stereotypical assumptions are unacceptable and urges employers “to make it easier for all workers, whether male or female, to balance work and personal responsibilities.”

It would be hard to imagine such a step happening were it not for the wave of lawsuits in recent years. Meanwhile, people like Karen Deonarain are waiting for their days in court. It has been more than three years since she lost her job. Her lawsuit, which charges that she was fired for complications related to her pregnancy, amounting to a form of sex discrimination, is in the discovery phase. A hint of weariness creeps into her voice when she talks about the case. “I think they want to drag it out so I’ll go away,” she told me, laughing softly.

But Deonarain is not planning to give up anytime soon. Since her dismissal, she and her husband, a car wholesaler, have made a major lifestyle adjustment no vacations, no expensive meals. She has yet to land a full-time job. The refinancing loan on the house eventually came through, and her daughter, Razia, is doing O.K., but the experience of being fired has had lasting psychological effects. “I find myself acting a little timid, protecting myself, so the world out there won’t hurt you,” Deonarain said. She told me she often thinks about what might have happened had she been a single mother. “I’m doing this so they won’t do it to the next person.” And what does she expect to get out of it herself? She paused. Some compensatory damages would be nice, she admitted. Her eyes circled the room. “And an apology would be good, too.”

Eyal Press is a contributing writer for The Nation. The paperback edition of his book, “Absolute Convictions: My Father, a City and the Conflict That Divided America,” was published earlier this year.