The Time is Now: Parental Discrimination and the Failure to Address It in the U.S.

Introduction

There is a severe problem in the United States that has been brewing regarding parental discrimination. Some refer to this as "family responsibilities discrimination" (FRD).[1] FRD is when an employer discriminates against their employees based on their caregiving responsibilities.[2] It is a problem that disproportionately affects single parents, particularly women, who shoulder the burden of caregiving responsibilities for their children; as of 2019, "about 15.76 million children were living with a single mother in the United States" versus "about 3.23 million living with a single father".[3] Statistics like these, accompanied by longstanding beliefs that women should shoulder a vast majority of the caregiving responsibilities for children, have created a "maternal wall" in the workplace.[4] The “maternal wall” is a system of bias that decreases “compensation and opportunities for advancement” for working mothers.[5]

The maternal wall can be seen in various cases that have proceeded to the court system, such as Back v. Hastings on Hudson Union Free Sch. Dist., in which a school psychologist was denied tenure and fired from her position because it was "presumed… as a young mother, [she] would not continue to demonstrate the necessary devotion to her job."[6] However, employers may discriminate in ways other than just firing a parent from the workplace.[7] There are "3 different ways in which individuals may experience employment discrimination because of their status as parents."[8] This discrimination can: 1) be the result of employer stereotypes; 2) reflect the fact that individuals with children cannot meet all demands of the employer (i.e., weekend work availability); 3) reflect the biological differences between men and women.[9] The availability of sources to combat these forms of discrimination is minimal, however.

Parental Protections

Plaintiffs can choose to pursue action under statutory protections, such as Title VII claims[10], Equal Protection violation claims,[11] or they may decide to attempt use of the Family and Medical Leave Act provisions[12].  Title VII claims are typically only successful if the plaintiff can show that they are a member of a "protected class" and are suffering discrimination as a result, such as on the basis of sex.[13] Some plaintiffs are successful with these claims by using the "sex-plus" method, in which they can show that the discrimination occurred on the basis of sex plus another factor, such as parenthood, similar to the plaintiff of Back.[14] However, this is only a valid claim in some states, and not necessarily as successful as others. On their own, a parent is not a member of a protected class, and the "sex-plus" model would leave many fathers without the ability to make a claim.[15]

Many of the suggestions on accommodating parents in the workplace involve broader protection statutes. Some states and areas, such as Alaska[16], Connecticut[17], and Washington D.C.[18],  have sought to remedy this by including familial status within their Civil Rights statutes, allowing them to be broader than the federal standard. While this can be a helpful solution for some plaintiffs, the statutes fail to give employers a framework to follow as to how to accommodate parents.[19] Critics state time and again that these state statutes lack the necessary affirmative action and "teeth" required,[20] such as those in the Family and Medical Leave Act.[21]

One effort from Congress to provide this framework resulted in the Family and Medical Leave Act (FMLA).[22] This provided framework for employers to offer 12 weeks of unpaid leave for a child's birth or to care for a child with a serious health condition, among other provisions.[23] It also claims to "protect the right to be free from gender-based discrimination in the workplace."[24] However, many parents have a significant issue with the leave requirement because it is unpaid and is only available for serious health conditions, rather than the minor ones that frequently occur with children.[25]

Others suggest employers follow the religious accommodation model, in which employers have a duty to provide accommodations so long as they do not cause the employer to incur undue hardship.[26] These can include flexible working hours and voluntary swaps between employees.[27] However, this is not always the best option; it can lead to resentment between employees with children and those that are child free.[28] The allure of providing flexible working time remains alluring, provided all may utilize it. The current situation of COVID-19 and the rise of working from home via Zoom show working from home is not always the best option, as seen in current pending litigation for a working mother, Ms. Rios, fired for working from home with children in the house.[29] Many employers have misgivings about providing flexible time and working from home and lack the substructure to utilize it appropriately.[30] Or, for some, lingering discrimination problems still rear their ugly head for parents that are forced to work from home and still suffer discrimination despite the flexible working hours and location.[31] As seen in Mrs. Rios's current claim, she still suffered discrimination for her familial duties while working from home.[32] Cases like hers will continue until the changing of workplace norms occurs.[33]

Conclusion

The changing of workplace norms "is not asking for special treatment; it is eliminating discrimination."[34] The United States is long overdue for a change regarding its workforce, particularly those with familial obligations. The U.S. is the only developed country without legally mandated paid vacation time.[35] "One in four Americans does not have a single paid day off."[36] That means one in four Americans must choose between their children and their job every time they need to take a day off for familial responsibilities, such as a sick child.[37] More must be done to eradicate this gross lack of support for families, which affects both single-parent and two-parent homes. We need legislation with a broader definition of protected classes, such as those seen in some state statutes.[38] This legislation needs required affirmative action, similar to that of the FMLA.[39] Perhaps even legislation that mirrors that of European countries that offer ample paid time off, and often reap the benefits of doing so.[40] Or maybe they could follow the guidelines given for religious accommodations to avoid the shock to the business that America holds so dear.[41] However, something must be done soon to challenge our current workplace norms, or we will see a flood of claims like that of Ms. Rios.[42]

FOOTNOTES

[1] Joan C. Williams & Stephanie Bornstein, The Jack Pemberton Lecture Series: Caregivers in the Courtroom: The Growing Trend of Family Responsibilities Discrimination, 41 U.S.F. L. REV. 171 (2006).

[2] Id.

[3] Erin Duffin, Number of U.S. children living in a single parent family 1970-2019, Statista, (Jan. 13, 2020), https://www.statista.com/statistics/252847/number-of-children-living-with-a-single-mother-or-single-father.

[4] Trina Jones, Single and Childfree! Reassessing Parental and Marital Status Discrimination, 46 ARIZ. ST. L.J. 1253, 1290 (2014).

[5] Id.

[6] Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2004).

[7] Peggie R. Smith, Article: Parental-Status Employment Discrimination: A Wrong In Need Of A Right?, 35 U. MICH. J.L. Reform 569 (2002).

[8] Id. at 574.

[9] Id. at 574-575.

[10] 42 USCS §2000e (LexisNexis 2020).

[11] 42 USCS § 1985 (LexisNexis 2020).

[12] 29 USCS § 2601 (LexisNexis 2020).

[13] 42 USCS §2000e (LexisNexis 2020).

[14] Back, 365 F.3d 107.

[15] 42 USCS §2000e (LexisNexis 2020).

[16] Alaska Stat. § 18.80.200 (LexisNexis 2020).

[17] Conn. Gen. Stat. § 46a-60 (LexisNexis 2020).

[18] D.C. Code Adv. Leg. Serv. §2-1402.11 (LexisNexis 2020).

[19] Id.

[20] Smith supra note 5.

[21] 29 USCS § 2601 (LexisNexis 2020).

[22] 29 USCS § 2601 (LexisNexis 2020).

[23] 29 USCS § 2612 (LexisNexis 2020).

[24] Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).

[25] Peggie R. Smith, Article: Accommodating Routine Parental Obligations In An Era Of Work-Family Conflict: Lessons From Religious Accommodations, 2001 WIS. L. REV. 1443 (2001).

[26] Id.

[27] Id.

[28] Id.

[29] Allyson Waller, Woman Says She Was Fired Because Her Children Disrupted Her Work Calls, NY TIMES (Jul. 9, 2020), https://www.nytimes.com/2020/07/08/us/drisana-rios-lawsuit-hub-international.html.

[30] Paul Davidson, More employers offer flexible hours, but many grapple with how to make it succeed, USA Today (Oct. 20, 2019) https://www.usatoday.com/story/money/2019/10/20/flexible-hours-jobs-more-firms-offer-variable-schedules/4020990002/.

[31] Waller supra note xxvii, Cf. Jones supra note iv (discussing how family friendly policies can create resentment between parents and single workers without children).

[32] Id.

[33] Williams and Bornstein supra note 1.

[34] Id.

[35] Alexander E.M. Hess, On holiday: Countries with the most vacation days, USA Today (Jun. 8, 2013) https://www.usatoday.com/story/money/business/2013/06/08/countries-most-vacation-days/2400193/ (comparing the difference in the amount of paid vacation days of countries in the European Union and the U.S.).

[36] Id.

[37] Smith supra note 20.

[38] Alaska Stat. § 18.80.200 (LexisNexis 2020); Conn. Gen. Stat. § 46a-60 (LexisNexis 2020); D.C. Code Adv. Leg. Serv. §2-1402.11 (LexisNexis 2020).

[39] 29 USCS § 2601 (LexisNexis 2020).

[40] Hess supra note 35.

[41] Smith supra note 20.

[42] Waller supra note 27.