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A crackdown on caregiver discrimination.

Article Excerpt
Employer stereotypes about caregiving and managers personal beliefs about pregnancy and family leave can manifest as discrimination--against both women and men.

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Last year, along with the American Civil Liberties Union and the New York Civil Liberties Union, we represented six women police officers who sued their employer, claiming that its policy barring officers from light-duty assignments--like working a desk job---while they were pregnant violated the federal Pregnancy Discrimination Act (PDA) and New York's Human Rights Law.

Under the policy, pregnant officers had two choices: take leave--which the officers knew might be unpaid and potentially used later as a reason to deny them a promotion or a request for transfer--or work on patrol. And patrol duty was not a realistic option because the department did not have bulletproof vests or gun belts that properly fit pregnant officers.

After seven days of testimony and deliberation in Lochren v. County of Suffolk, the jury returned verdicts for the plaintiffs and awarded damages. (1) But most important to our clients, shortly after the trial, the department began allowing pregnant officers to receive light-duty assignments if they submitted a request for such an assignment along with a doctor's note verifying their pregnancy.

Lochren jurors polled after the trial expressed disgust with the department's policy. One juror said that their decision was "a no-brainer," citing one plaintiff's testimony that she had gone on patrol in her seventh month of pregnancy with her stomach exposed because her bulletproof vest rode up above it. Nearly all the jurors had someone in their lives they could look to for perspective on how the policy may have affected the plaintiffs. They imagined their mothers, sisters, nieces, or themselves pregnant and out on patrol with no meaningful protection.

Cases based on pregnancy discrimination are not new, nor--unfortunately-are they rare. Many employers still hold wrongful beliefs about whether pregnant women or those who have recently given birth can be effective employees or even should be in the workforce. Similar stereotypical thinking is at the core of a growing number of cases based on workplace discrimination against not only pregnant women and new mothers, but anyone--rooms, dads, and even adult children with aging parents--who has primary caregiving responsibility for a family member.

Some of these "family responsibility discrimination" (FRD) cases allege that job applicants were rejected for employment because of their caregiving status. In others, employees claim they were denied promotion, subjected to hostile work environments, or fired solely because their employers assumed they could not do their jobs and care for dependent family members.

Based on case law and situations presented by employees who have come to our door, here are some common FRD fact scenarios:

* An employee finds out she is pregnant but does not tell her boss, fearing she will be fired. Eventually, the pregnancy becomes obvious. Soon, she is fired for "poor performance."

* A low-wage earner takes time off to care for his aging parents and is fired.

* An employee finds out that she is pregnant and tells her coworkers and her boss in casual conversation. People congratulate her and ask her friendly questions about the pregnancy, such as "When are you due?" The questions later change, along the lines of "You aren't coming back, are you?" Gradually, her responsibilities are transferred to another employee. When she returns from maternity leave, she is told that the employer "no longer has any work" for her, and she is fired.

* An employee returns from parental leave to find that someone else "assumed" his responsibilities while he was gone and that he has been reassigned to a different position. Because he does not have the necessary skills or training for the new job, he is...