More Workers Alleging Bias Against Caregivers

Dawn Gallina and her children, Lily and Kelly i i

Dawn Gallina and her children, Lily and Kelly. Gallina lodged a "family responsibility" lawsuit against a former employer and won a settlement. Courtesy of Dawn Gallina hide caption

itoggle caption Courtesy of Dawn Gallina
Dawn Gallina and her children, Lily and Kelly

Dawn Gallina and her children, Lily and Kelly. Gallina lodged a "family responsibility" lawsuit against a former employer and won a settlement.

Courtesy of Dawn Gallina

There's no federal law that bans workplace discrimination against parents or people who care for elderly or disabled family members, but that hasn't stopped a surge of lawsuits by such workers alleging unfair treatment by their employers. In the past 10 years, the number of such suits has quadrupled and many have been successful, according to the Center for WorkLife Law.

A typical plaintiff might be Dawn Gallina. As a fifth-year associate at a law firm a decade ago, Gallina says, her managing partner struck up a troubling conversation.

"He just dropped by my office, talked to me about absolutely nothing relevant and ended his conversation by telling me that pregnant women don't make partner in his firm," Gallina says.

Things at the office had started to go downhill after her husband dropped by one day with their baby daughter, she says. Her boss asked why she hadn't mentioned being a mother during her job interview.

A chart showing the rise in discrimination cases involving family responsibilities

From that point, Gallina says, she was asked to come in on weekends, only to find no work to do. She says she was badgered about "face time," even though she was in the office from 9 a.m. until 7 p.m. most days and often held evening conference calls after putting her child to bed.

When she explained this to another superior, she says, he responded: "You need to decide whether you want to be a mommy or a lawyer."

Gallina says she complained repeatedly to the firm's human resources department but was eventually denied a raise and fired. Gallina sued the firm.

Cynthia Calvert of the Center for WorkLife Law says the case is part of a growing legal trend.

"We have more mothers in the workforce now," Calvert says. "More people have elderly parents that they need to care for, and we have more fathers actively involved in their children's lives."

Same Gender, Same Choices

A few years ago, the Equal Employment Opportunity Commission (EEOC) decided to take up the issue.

Key Case Trends

A recent report by the Center for WorkLife Law found three trends in family responsibilities discrimination cases:

New Supervisor Syndrome — Many cases are filed after new supervisors change shifts, impose new productivity requirements, or cancel flexible work arrangements.

Second Child Bias — Many women say they don't experience discrimination until they become pregnant with a second child or twins.

Elder Care Effect — A growing number of cases are filed by employees who need time off to care for aging parents.

Stuart Ishimaru of the EEOC says he and the other commissioners were themselves grappling with balancing work and family and noticed that more and more people were complaining about unfair treatment because of such family duties. But because there was no federal law against that, "it would be too easy for our people to say we don't cover that," Ishimaru says.

So the EEOC told its offices to think creatively about how current laws could address these problems. Often suits can be brought as gender or disability discrimination or violations of the Family Medical Leave Act.

Gallina alleged unlawful retaliation after she complained about her boss' comments.

In 2007, the EEOC also issued guidance to help employers avoid such lawsuits. Ishimaru admits it can be tricky. A boss may even think she's being benevolent by offering a new mom fewer responsibilities and less travel. But that can get a company in trouble.

"You need to ask," Ishimaru says. "You say, 'These are the choices you can have,' making sure that people are treated and given the same choices no matter what their gender."

Most caregiver discrimination suits involve women and pregnancy, but Calvert says 12 percent are filed by men "such as a father who wants to take paternity leave and is denied the leave because the employer feels that taking care of a newborn is women's work."

Q: What is the average verdict or settlement in family caregiver cases?

A: $578,316.

One of the highest awards was a jury verdict of $11.65 million to a male hospital worker in 2002. The man had been fired for failing to meet new production quotas, even though he'd been taking intermittent leave to care for a dying mother and a father with Alzheimer's disease.

In recent years, dozens of localities have passed laws specifically banning discrimination against workers they describe as "parents" or those with "family responsibilities." A handful of state legislatures have considered similar legislation.

In Virginia, Gallina's law firm — Mintz Levin — fought her lawsuit, insisting she'd been fired for poor performance. Partner Sue Finegan says she has had a positive experience as a working mom.

"I had my first maternity leave in '97, a year-and-a-half before I made partner," she says. "And then in 2000 I had another maternity leave," when she took eight months off. Finegan also worked part-time some years. She points out that Mintz Levin has won numerous awards for its family-friendly benefits.

Ultimately, though, a federal appeals court sided with Gallina. It upheld an award of more than $500,000 and offered the prospect of more in punitive damages.

"A lightbulb must have gone off," says Gallina, "because suddenly they were in a mood to settle."

These days, Gallina says, she's happily employed at a different company that she says values her family life.

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