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Family-Leave Lawsuits on the Rise

This past Sunday, the New York Times Magazine featured this lengthy article on the increasing number of lawsuits over family-leave policies (July 29, 2007).

Increasingly, employees who take time off for family care obligations -- ranging from caring for sick family members to having a baby -- and are prohibited from returning to their job are suing their employers. Up until recently, employees typically relied on the protections of the Family and Medical Leave Act, but its scope is limited (it does not cover companies with fewer than 50 employees). But now employees and their lawyers are developing new legal theories to protect employees who must take extended leave for family care obligations. From the article:

More than 1,150 [family care obligation] 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.

So how are employers reacting to the new slew of lawsuits -- and the new realities of the workplace? The article quotes Zachary Fasman, a partner at the New York office of Paul, Hastings, Janofsky & Walker who specializes in employment law -- and holds a skeptical view about these suits. From the article:

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.”

But the article also points out that some companies are changing their policies voluntarily anyway, in an effort to attract and retain qualified employees.

As pointed out in this post at Labor Prof Blog, family care lawsuits "are fundamentally about family values, not gender discrimination. For this reason, they unite people on both sides of the political divide." But even with this unity, I don't expect a quick solution to these issues anytime soon -- because in my view, these are tricky problems. After all, no one opposes family values -- until they're the person who winds up picking up the slack at the office while co-workers are home caring for a child or sick family member.

Posted by Carolyn Elefant on August 2, 2007 at 06:52 PM | Permalink | Comments (1)

Comments

This past Sunday, the New York Times Magazine featured this lengthy article on the increasing number of lawsuits over family-leave policies (July 29, 2007).

More than 1,150 [family care obligation] 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.

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.”

But the article also points out that some companies are changing their policies voluntarily anyway, in an effort to attract and retain qualified employees.

View the entire comment thread.

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