Remarks Of Zachary D. Fasman

The U.S. Equal Employment Opportunity Commission

Meeting of April 17, 2007 - Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws

Good morning, Madam Chair, Madam Vice-Chair, and Commissioners Ishimaru and Griffin. Thank you for the opportunity to participate in the meeting today. My name is Zachary Fasman, and I am a partner and the Chair of the Employment Law department in the New York office of Paul, Hastings, Janofsky and Walker LLP. I have been practicing labor and employment law for 35 years, and a significant part of my practice involves advising corporate clients about employment discrimination law issues, and litigating employment discrimination cases in the federal and state courts. I have studied and written about employment discrimination law throughout my career, including several books on employment discrimination issues. The comments set forth below are not attributable to any of my clients nor to my law firm, but represent my own views about the subject matter of this hearing.

  1. Introduction
  2. Family responsibility discrimination ("FRD") is an interesting and attractive term that has many meanings. The concept of discrimination against care-givers is important and useful from several viewpoints, in particular calling attention to the need to avoid making employment decisions based upon assumptions about the attitude of caregivers as well as the need to ensure that leave programs are administered on a non-discriminatory basis. What I would like to discuss, from the EEOC's standpoint as a law enforcement agency, is how this term raises a number of distinct and troublesome distinct legal issues.

    First and foremost, it is important to recall that Congress has never outlawed family responsibility discrimination. Indeed, only one state – Alaska – and the District of Columbia have done so.1 If there is any legal protection on the federal level for discrimination against employees involved in family-related activities, it arises indirectly from statutes addressed to other issues.

    For this very reason, FRD is far from an integrated concept in the law, but is rather an amalgam of very different cases arising under very different circumstances and argued under very different legal theories. FRD advocates have noted that FRD claims have been brought under many different statutes at the federal level alone, including Title VII of the Civil Rights Act of 19642 , the Equal Protection Clause of the Fourteenth Amendment,3 the Pregnancy Discrimination Act ("PDA")4 , the Americans with Disabilities Act ("ADA")5 , the Equal Pay Act,6 and the Family and Medical Leave Act ("FMLA")7 . One recent piece by my co-panelist Ms. Williams noted that there are 17 different statutory theories under which FRD claims are being pursued!8 This plethora of theories indicates that the supposedly unifying concept of family responsibility discrimination is a name applied to any number of different legal claims brought under entirely different legal theories.

    Two examples of potential FRD discrimination claims illustrate the disparate circumstances underlying this concept.

  • Consider the case of a woman denied a promotion by her supervisor based on the supervisor's belief that mothers of small children will not work as hard or be as dedicated to their jobs as men, or women without children.
  • Compare that to the case of a male employee who is denied an indefinite period of leave, beyond that provided for by the FMLA, in order to care for an aging parent.

While FRD advocates have argued that both of these claims are examples of FRD, the claims are markedly different and require distinct analyses under federal antidiscrimination statutes. In the former example, the employee would be asserting a claim for gender discrimination based upon assumptions made about women, a form of gender bias addressed and protected under Title VII. In the latter example, the employee would be asserting a claim for extended leave beyond that which Congress believed was legally required when it passed the FMLA, a claim that in my view is well beyond the requirements of federal law and one that has no basis under Title VII or any other law the Commission enforces.

The only concept that links these examples – and that links most FRD cases generally – is the idea that the wrongs alleged all involve caregivers in one way or another. In other words, FRD is not an distinct area of discrimination law, so much as a collection of different legal issues linked together because the plaintiffs are engaged in a variety of family-related activities.

From the Commission's viewpoint, I suggest that the proper question to ask is whether this concept is sufficiently distinct as to warrant the issuance of some form of guidance or a specific enforcement strategy. The answer to that question depends upon understanding how FRD fits within existing legal frameworks, and particularly how FRD claims are analyzed under Title VII and the ADA.

  • The Legal Underpinnings of Family Responsibility Discrimination: Disparate Treatment Law
    1. The Legal Origins of Family Responsibility Discrimination
    2. Discrimination against employees based on their responsibilities to care for family members, such as children or aging parents, is generally said to trace back to the Supreme Court's 1971 decision in Phillips v. Martin Marietta9 . In Phillips, the employer refused to allow mothers of school-age children to apply for jobs that were open to men with young children and women without children.10 The Court held that this practice discriminated against women on the basis of their gender based on a stereotype about their caregiving role.11

      After Phillips, the trend in litigation alleging discrimination on the basis of family caregiving responsibilities did not pick up again until the 1990s. A study done by the Center for WorkLife Law at the University of California, Hastings College of the Law, has attributed this surge in litigation to women's increased presence in the workplace, and the passage of both the Civil Rights Act of 1991, which expanded remedies under Title VII, and the Family and Medical Leave Act of 1993 (the "FMLA"), which recognized employee interests in achieving work/life balance.

    3. Gender Discrimination Under Title VII's Disparate Treatment Theory
    4. The most compatible statutory and analytical framework for FRD cases is Title VII's disparate treatment prohibition against gender discrimination in the workplace.12 Most successful FRD cases reported in the courts resemble the Supreme Court's decision in Phillips to a greater or lesser degree. A classic example is a supervisor who refuses to consider a woman for hiring or promotion because she has young children and the supervisor assumes that she will not work as hard or be as dedicated to her work based on his beliefs about a woman's role in childcare. If the supervisor applies such a presumption only to women with small children, and not men, this is unlawful based upon a straightforward application of gender discrimination law under Title VII.13 This case is no different analytically than the prohibition of age-based assumptions regarding working ability held unlawful under the Age Discrimination in Employment Act (the "ADEA"),14 or the prohibition under Title VII against precluding women from jobs requiring heavy lifting without determining if an individual woman can meet the job's qualifications, no matter her gender.15

      Significantly, federal courts have held in several cases that under Title VII's disparate treatment analytical framework, there can be no FRD claim where the employer refuses to consider for promotion all individuals with young children – both men and women.16 This case law underscores that discrimination against care-givers as such is not co-extensive with Title VII's gender discrimination protections. Whether denial of leave to all employees with young children makes sense for the organization is another question, and one to which I will return at the end of my remarks.

    5. Gender-Based Exclusion from Leaves of Absence Under Title VII
    6. Title VII's prohibition on unequal treatment in the workplace requires that an employer's leave of absence policy be administered on a gender neutral basis. Thus, if an employer provides child-rearing leaves of absence, the employer make them available to employees of both genders. An employer is prohibited from denying male employees child-rearing leaves on the assumption that women are the primary caregivers. Likewise, if an employer allows male employees to leave work early a few times a week in order to coach a baseball team, the employer must also allow similarly situated female employees the same leave for child care purposes.

      I would note my use of the term similarly situated in the example above, because it is an issue to which I will return. In the foregoing example, if the male employee is a shift worker who is not engaged in time-sensitive projects, he is not similarly situated to a high-level female executive whose presence is necessary for the continued operation of the facility. Numerous similar examples can easily be devised.

    7. Are Employees on Leave Insulated From Normal Personnel Actions?
    8. FRD advocates have asserted that those on family-linked leaves of absence should be insulated from normal personnel actions. For example, an FRD advocate would argue that the job of a woman on maternity leave cannot be eliminated as a result of a company-wide reduction of force simply because she is engaged as a family caretaker. Many federal cases reach the opposite conclusion, and hold that a reduction in force that eliminates the job of a woman on maternity leave is lawful, because the woman is entitled to equal, not preferential, treatment, as compared to similarly-situated individuals.17 Likewise, if a male employee's job is eliminated while he is on a temporary leave of absence to care for aging or ill parents, the employee's layoff is lawful so long as he is also treated the same as other employees even if he is on family leave during the elimination.18

      While there are exceptions to these principles, they are reserved for cases where there is proof of intentional discrimination. For example, if a plaintiff can prove that an employer deliberately adopted a rule to ensure that women on maternity leave would not be able to return to work, that rule may be found unlawful under federal antidiscrimination law. In this case, however, it is important to note that the rule would be unlawful because of the discriminatory intent behind it and not because of its potentially disproportionate impact on women with family caretaking responsibilities.

    9. The "Sex-Plus" Theory of Discrimination: Lack of Analytical Clarity Surrounding Plaintiff's Burden and the Effect of Direct Evidence of Discrimination on the Outcome of the Case.
    10. While some federal courts since Phillips have seemed to espouse the "sex-plus" theory of discrimination, there is a lack of analytical clarity about whether this theory changes a plaintiff's burden of proving similarly-situated status and to what extent direct evidence of discrimination has affected the outcome of litigated cases. Generally, in order to show a prima facie case of disparate treatment on the basis of sex under Title VII, a plaintiff must prove that he/she was treated differently than similarly situated employees. It is my observation that in the majority of sex-plus cases involving discrimination on the basis of gender plus marriage or family responsibilities, the federal courts have held that proof of disparate treatment based on inclusion in the protected categories alone is insufficient, and that a plaintiff must show that he/she was treated differently than similarly situated employees of the opposite sex.19

      Some federal court cases have held that plaintiffs in sex-plus cases need only prove that they were treated differently from other members of their own sex with similar marriage or family circumstances in order to make out a prima facie case of discrimination.20 I believe it is significant that in most of these cases – indeed, in a striking number of cases involving care-givers – the plaintiff was able to introduce direct evidence of discrimination on the basis of sex, generally in the form of comments from a supervisor indicating sex-based stereotyping (e.g., comments stating that because the employee was a woman with children, she would be preoccupied with family responsibilities and less committed to her work).21 While some federal case law could be relied upon to argue that "sex-plus" family claims are entitled to protection as such, in my view these cases should not be read so broadly as to create a different form of protection under Title VII's prohibition on gender discrimination by lifting from the plaintiff the obligation to show that she is being treated differently than comparably situated male employees. The best reading of these cases is that the plaintiff's burden of proof was altered because she was able to bring forward directly discriminatory comments and thus prove discrimination without relying upon the normal McDonnell Douglas inferential framework.

    11. The ADA and Associational Discrimination
    12. The ADA prohibits discrimination against individuals based on their association with individuals with disabilities.22 FRD claimants have some protection against employment discrimination under this provision of the ADA if their employers treat them unfavorably based on their caretaking responsibilities for a disabled family member(s).23 But I would again emphasize that the ADA's associational protection is not coextensive with the a purported FRD theory of discrimination based upon care-giving alone.

      First and foremost, in order to qualify for protection under the associational provision of the ADA, an individual's family member must be "disabled" under the meaning of the statute. If the family member's illness or injury does not so qualify, an employee caretaker will not be shielded from adverse employment action under this statute. The ADA's protection for employees who care for disabled family members is therefore far from coextensive with the protection advocated by FRD advocates. Furthermore, unlike disabled individuals covered by the ADA, who are allowed reasonable accommodations in order to perform their work duties,24 individuals with an associational relationship to a family member with a disability are not afforded "reasonable accommodation" under the statute. The statute does not mention reasonable accommodation in the provision addressing those who associated with disabled individuals,25 and the Commission's own guidelines and federal court decisions have concluded that Congress did not intend to afford a reasonable accommodation to anyone other than the disabled individuals themselves.26 Therefore, if an employee who cares for a disabled family member requires accommodation in order to care for his/her disabled family member, he/she will not be protected from adverse employment action.27 Individuals with more extensive commitments to family care than are protected under this antidiscrimination rubric are simply not shielded from normal personnel actions based on job performance.

  • Disparate Impact and FRD Under Title VII
  • While some FRD claims fit comfortably with the framework of existing disparate treatment law, disparate impact is another question entirely. In my view, federal discrimination statutes do not support FRD claims where uniform employer policies disparately impact upon individuals involved in family caretaking activities. The rights that many FRD advocates are asserting – that any policies that adversely impact upon employees with family responsibilities are unlawful absent proof of business necessity – simply do not exist under federal law.28 Concrete examples of how an employer's policies may impact those with family caregiving responsibilities, but yet not offend federal antidiscrimination statutes, illustrate this concept.

    Example: Employer's Policy Prohibiting Telecommuting

    A uniform policy against telecommuting is perfectly legitimate under federal law. An employer may forbid this type of work arrangement simply because it does not believe that telecommuters work efficiently, or because it does not like the idea of having an unsupervised workforce. While a "no telecommuting" policy might have a disproportionate impact on individuals who would prefer to work from home in order to care for their dependent children, as long as the policy is uniformly applied, i.e., applied to both male and female employees equally, existing federal laws do not prohibit this policy.29 Absent some evidence that Congress intended to protect caregivers as such – a conclusion that is not justified in my view – there is no supportable argument under federal law that a no telecommuting policy is discriminatory because it has a disparate impact on family caretakers.

    Example: Employer's Maximum Leave of Absence Policy

    Under federal antidiscrimination law, an employer's policy limiting employees' unpaid leave to a maximum of one year is perfectly legal. This policy would be well in excess of the FMLA's leave requirement, which mandates only a 12-week unpaid leave,30 and would almost certainly exceed any state leave laws. The application of this policy will have an impact on a male employee who applies for an unlimited leave to care for a sick parent, or a female employee who would like to leave the workforce for an undetermined period of time in order to raise children. Therefore, while a maximum leave of absence policy may have a disparate impact on employees with family caretaking responsibilities, there is no evidence that Congress has deemed the policy unlawful.31 Court decisions confirm this view, as there are a number of decisions refusing to find a violation of federal law so long as the employer provides leave in excess of that required by the FMLA.32 Stated differently, no federal law requires that an employer hold an employee's job open for an indeterminate period of time based on his/her status as a family caregiver.

    Example: Strict Attendance Policy

    An employer may enforce a strict attendance policy without running afoul of current antidiscrimination statutes. Such a policy may have a disparate impact on individuals with young children who, for instance, may need to arrive at work later than their colleagues without children or leave early in order to relieve their daytime childcare providers. Congress has never required that employers must provide flexible scheduling, and no federal antidiscrimination statutes make the policy's disparate impact on employees with childcare responsibilities unlawful.33 On the contrary, under the ADA, attendance is routinely considered an essential job function that employees must fulfill.34 Indeed, as stated above, under the ADA those who provide family caretaking to disabled individuals are not granted a "reasonable" accommodation in order to perform the requirements of their jobs, whether through less strict attendance requirements or any other employer employer-provided accommodation.35 There is no reason that the concept of FRD should change this long-accepted idea.

    Example: Mandatory Overtime or Required Work Schedule

    Employers may lawfully require that their employees engage in mandatory overtime work, or work a particular shift. As long as employers meet the pay, rest and meal period provisions, and recordkeeping requirements of the Fair Labor Standards Act and attendant state laws, a uniformly applied mandatory overtime policy or required working schedule does not run afoul of discrimination laws.36

    Lactation Leave?

    If disparate impact law protects caregivers from policies that have an adverse impact on the basis of gender, then surely an employer could not maintain a policy that precludes breast feeding in the workplace. Such a policy has an impact only upon women for biological reasons. While lactation leave is required by law in several states,37no federal law requires that an employer provide reasonable accommodations for lactating mothers, even though a failure to do so disproportionately impacts women with children.38

    Proportionate Pay for Part-Time Workers?

    One of the most far-reaching proposals put forward by FRD advocates is that part-time workers must be paid proportionately to full-time workers and receive equally challenging and interesting assignments. While the Equal Pay Act guarantees "equal pay for equal work" and Title VII requires equal treatment for employees who are "similarly situated", courts have determined that neither statute guarantees proportionate pay and equal work for an employee, male or female, who does not commit equal time to his work endeavors. In LaRocco v. Nalco Chemical Co.39 the Northern District of Illinois found that plaintiff could not establish a prima facie case of discrimination under either the Equal Pay Act or Title VII as "[t]here is an inherent difficulty in comparing [plaintiff], who was working part-time, with full-time . . . marketers."40 Quoting the Seventh Circuit's decision in Ilhardt v. Sara Lee Corp.41 , the court found that "'full-time employees are simply not similarly situated to part-time employees. There are too many differences between them; . . . part-time employees work fewer hours and receive less pay and fewer benefits.'"42 Further, the court found that plaintiff's Title VII claim failed "because she was the only part-time . . . marketer, she [could not] show she was treated less favorably than a male employee under identical circumstances."43 This result holds true even where the population of part-time workers is disproportionately composed of women with childcare responsibilities.44

    These are just a few examples of policies that may have an adverse impact upon individuals with care-giving responsibilities. Of course, all such policies must be administered on a gender neutral basis to meet Title VII's requirements. Assuming that, however, there is no basis under current law for claiming that such policies are unlawful merely because they have an adverse impact upon "caregivers" as such.

    In enacting the current antidiscrimination statutes, in my view Congress has only mandated that those in protected categories not be discriminated against in their terms and conditions of employment, but has never decreed that every workplace be "family friendly," nor that employers adopt polices that will best accommodate individuals with family responsibilities. While the concept of reasonable accommodation is known in the law, aside from its application to religious discrimination cases, Congress has always explicitly imposed an accommodation requirement in the statutory language where such is required, and has not found that accommodation is required as a matter of course simply because discrimination on a certain basis is prohibited. If accommodation were required in every instance where discrimination is prohibited, Congress would not have had to insert a specific accommodation requirement in the ADA. It would have simply been understood that along with a prohibition on discrimination comes an employer's obligation to accommodate employees in a protected category. That is not and has never been the law.

  • Management Training and Family Friendly Workplace Policies
  • While there is a lack of statutory support for some aspects of family responsibility discrimination under federal law, as I have argued, employer decisions to train their managers to avoid gender, age, and race-based stereotypes in the workplace and to ensure that existing leave policies are non-discriminatorily administered is very important. Even in the absence of specific family protection legislation, employers adopting such measures can avoid future litigation and may also improve employee productivity and the general happiness of the workforce. Many employers, and many of my own clients, have gone further because they recognize that over and above the positive values associated with the family itself, they have substantial investments in their employees and should be reasonably accommodating in their attempts to allow productive employees to harmonize family and work. There are a number of pro-family policies available for employers who wish to undertake a family-friendly initiative, including flexible work schedules, telecommuting, and extended unpaid leave policies to accommodate employees' care for aged or ill parents or disabled children, just to name a few. While not mandated by federal law, employers may well wish to introduce such policies voluntarily, to help employees harmonize work and family responsibilities effectively.


    1 See D.C. St. §2-1402.11(a) (outlawing family responsibility discrimination). Many states ban discrimination based upon marital status. See Cal. Gov. Code §12921(a).

    2 See e.g., Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004) (gender discrimination claim brought by female care-giver); Lust v. Sealy Inc., 383 F.3d 580, 583-85 (7th Cir. 2004) (same).

    3 See e.g. Knussman v. Maryland, 272 F.3d 625, 635-37 (4th Cir. 2001) (denial of child care leave to male state trooper challenged under Equal Protection Clause of the Fourteenth Amendment).

    4 Walsh v. National Computer Systems, Inc., 332 F.3d 1150, 1160 (8th Cir. 2003) (PDA claim brought by female employee).

    5 See, e.g., McGrenaghan v. St. Denis School, 979 F. Supp. 323, 326 (E.D.Pa. 1997) (associational discrimination claim brought by mother of disabled child); Abdel-Khalek v. Ernst & Young, LLP, No. 97 Civ. 4514 JGK, 1999 WL 190790, at *5-6 (S.D.N.Y. Mar. 5, 1999) (same).

    6 See, e.g., Lovell v. BBNT Solutions, LLC, 295 F. Supp. 2d 611 (E.D.Va. 2003); . LaRocco v. Nalco Chemical Co. No. 96 CV 3980, 1999 WL 199251 (N.D. Ill. March 30, 1999); Ilhardt v. Sara Lee Corp., 118 F. 3d 1151 (7th Cir. 1997) (see discussion below).

    7 See, e.g., Schultz v. Advocate Health and Hospitals Corp., No. 01 Civ. 702, 2002 WL 1263983, (N.D. Ill. June 5, 2002) (FMLA challenge to employer's institution of grading policy that rated employees on basis of work completed in set amount of time); Blohm v. Dillard's, Inc., 95 F. Supp. 2d 473, 481 (E.D.N.C. 2000) (FMLA retaliation claim).

    8 Joan C. Williams & Cynthia Thomas Calvert, Worklife Law's Guide to Family Responsibilities Discrimination (2006).

    9 400 U.S. 542 (1971).

    10 See id at 545-46.

    11 Id.

    12 See 42 U.S.C. § 2000e et seq.

    13 See e.g., Back, 365 F.3d 107; Trezza v. Hartford, Inc., No. 98 Civ. 2205 (MBn)1998 WL 912101 (S.D.N.Y. Dec. 30, 1998); Troy v. Bay State Computer Group, Inc., 141 F.3d 378 (1st Cir. 1998); Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999); Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), aff'd, 383 F.3d 580 (7th Cir. 2004); Stern v. Cintas Corp., 319 F. Supp. 2d 841 (N.D. Ill. 2004); Plaetzer v. Borton Automotive, Inc., No. Civ. 02-3089 JRT/JSM2004 WL 2066770 (D. Minn. August 13, 2004); Bailey v. Scott-Gallaher, 253 Va. 121 (Sup. Ct. 1997) (finding gender discrimination under Virginia Human Rights Act).

    14 See generally 29 U.S.C.A. §621 et seq.

    15 See also Auto Workers v. Johnson Controls, 499 U.S. 187 (1991) ("'[P]ermissible distinctions based on sex must relate to ability to perform the duties of the job involved'") (internal citation omitted).

    16 See Bass v. Chemical Banking Corp., No. 94 Civ. 8833 (SHS), 1996 WL 374151, at *7 (S.D.N.Y. July 2, 1996) (dismissing plaintiff's "sex-plus" claim where she failed to produce "any evidence to show that [the defendant] treated her differently than married men or men with children"); Capruso v. Hartford Financial Services Group, Inc., No. 01 Civ. 4250 (RLC), 2003 WL 1872653, *5-6 (S.D.N.Y. April 10, 2003) (Title VII did not prohibit discrimination based on a mother's choice to work part time, rather than full time; when mother learned that she wouldn't be promoted because she was part time, she could have returned to a full time schedule, but she instead chose to remain on a part time schedule and enjoy the benefits of her flexible work arrangement).

    17 See e.g., Ilhardt, 118 F.3d at 1155-56 (holding that plaintiff "could not show she was treated less favorably than similarly situated, nonpregnant employees because she was pregnant" and that during RIF, employer had made "a legitimate business decision when it discharged [plaintiff] instead of a full-time employee;" court "refuse[d] t-o act as a 'super-personnel department' and second-guess [employer] as to how best to staff its law department"); Smith v. F.W. Morse & Co. Inc., 76 F.3d 413, 423-24 (1st Cir. 1996) (holding that employer's elimination of employee's managerial position while she was on maternity leave was not per se unlawful under Title VII).

    18 See, e.g., Regan v. Natural Resources Group., Inc., 345 F. Supp. 2d 1000, 1010 (D.Minn. 2004) (holding that job elimination was lawful even where employee is laid off while on FMLA leave).

    19 See e.g., Fisher v. Vassar College, 70 F.3d 1420, 1446-48 (2d Cir. 1997) (holding that a sex-plus marriage claim may not rest solely on evidence that married women were treated less favorably than single women; in order to show that a tenure policy discriminates against women who have taken long periods of leave to raise their children, plaintiff must prove that women who took extended leaves were treated less favorably than men who also had taken extended leaves) cert. denied, 522 U.S. 1075 (1998); Panis v. Mission Hills Bank N.A., 60 F.3d 1486, 1490-91 (10th Cir. 1995) (finding that plaintiff employee must show some difference in treatment between the sexes before upholding a marriage-based sex discrimination claim under Title VII) cert. denied, 516 U.S. 1160 (1996); Martinez v. N.B.C., 49 F. Supp. 2d 305 (S.D.N.Y. 1999) (dismissing employee's claimed sex-plus discrimination for alleged disparate treatment based on her sex and her need to pump breast milt for her newborn infant where plaintiff failed to show that she was treated less favorably than similarly situated men).

    20 See, e.g., Trezza v. Hartford, Inc., No. 98 Civ. 2205 (MBM), 1998 WL 912101, at *6 (S.D.N.Y. Dec. 30, 1998) (holding that plaintiff's burden to prove disparate treatment between men and woman in order to prevail on his/her Title VI claim must be shouldered "only at the pretext stage of the burden-shifting analysis;" "[w]hen a plaintiff alleges discrimination on the basis of sex in conjunction with some other characteristic, the defendant's selection of someone of the same sex as plaintiff but without the added characteristic is insufficient to defeat an otherwise legitimate inference of discrimination – the essence of a plaintiff's prima facie case"); Santiago-Ramos v. Centennial P.R. Wireless, 217 F.3d 46, 57-58 (1st Cir. 2000) (holding that where employer's proffered reason for employee's termination was pretextual where plaintiff's evidence demonstrated employer's animus toward working mothers alone in disparate treatment case); Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 122 (2d Cir. 2004) (holding that "stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive").

    21 See Santiago-Ramos, 217 F.3d at 55-58 ( finding evidence of employer's animus towards working mothers defendants repeatedly asked her how her husband was managing since she was not at home to cook for him and whether she could perform her job effectively after have a second child); Back, 365 F.3d at 115, 124 (finding "direct evidence of bias" where supervisors had made statements that plaintiff could not "be a good mother" and work long hours, or lacked sufficient "commitment" because she had "little ones at home").

    22 See 42 U.S.C. §12112(b)(4) (discrimination includes "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association").

    23 See, e.g., McGrenaghan v. St. Denis School, 979 F. Supp. 323, 326 (E.D.Pa. 1997) (where plaintiff produced evidence that she was transferred from a full to a half-time teaching position after the birth of her disabled son, plaintiff had met prima facie case of discrimination under ADA, and employer was not entitled to summary judgment); Abdel-Khalek v. Ernst & Young, LLP, No. 97 Civ. 4514 JGK, 1999 WL 190790, at *5-6 (S.D.N.Y. Mar. 5, 1999) (denying employer's motion for summary judgment on employee's ADA claim where employee had presented sufficient evidence showing that her giving birth to a disabled child that required extensive care may have been a basis for successor company's decision not to hire her).

    24 See 42 U.S.C.A. §§12111(a); 12112(5)(A)-(B).

    25 See 42 U.S.C.A. §12112(4).

    26 See EEOC Interpretive Guidance, 29 C.F.R. Pt. 1630.8 app. at 348 (1996) (noting that where an associate or relative of the employee is disabled, but the employee himself is not disabled "an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities. Thus, for example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability"); See also,Den Hartog v. Wasatch Academy,129 F.3d 1076, 1084 (10th Cir. 1997) (finding that "the lack of any reference to the associates or relatives of the employee or applicant in Section 12112(b)(5)'s articulation of the ADA's "reasonable accommodation" requirement is not due to any inadvertent omission," and that therefore, the ADA does not require that "reasonable accommodations" be provided to associates of a disabled individual); Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1231 (11th Cir. 1999) (finding that plaintiff could not prove associational discrimination under the ADA where she could not "establish the second associational discrimination factor of showing that she was qualified for the position sought" – in this case, that she could meet the attendance requirements of the job); Tyndall v. National Educ. Centers, Inc. of California, 31 F.3d 209, 214 (4th Cir. 1994) (finding the employer's actions in terminating plaintiff did not constitute associational discrimination under the ADA because this statute "does not require an employer to restructure an employee's work schedule to enable the employee to care for a relative with a disability" and plaintiff's claim "was not based on any assumption regarding future absences related to [her disabled son's] care, but instead resulted from her record of past absences and her clear indication that she needed additional time off").

    27 The statute specifies that job restructuring and part-time or modified work schedules may be considered "reasonable" accommodations for purposes of the ADA. See 42 U.S.C. 12111(9).

    28 Federal law does not require that family caregivers be accorded special treatment, but only that they receive the same treatment as all other employees with similar caregiving responsibilities. See, e.g., Gratton v. Jet Blue Airways, No. 04 Civ. 7561(DLC), 2006 WL 2037912, at *6-7 (S.D.N.Y. July 21, 2005) (holding that pregnant employee did not prove discrimination under Title VII where she could not identify any accommodation given to other temporarily disabled employees that was withheld from her).

    29 See, e.g., Homburg v. United Parcel Service, Inc., Civ. A. No. 05-2144-KHV, 2006 WL 2092457, at *12 (D. Kansas July 27, 2006) (finding that plaintiff can not asserted that employer's requirement the employees work from the office, rather than from home, and refusal to permit plaintiff to work on a flexible schedule was unlawful sex discrimination where record no evidence that employer enforced an office attendance policy on a discriminatory basis or that defendant allowed males in plaintiff's position the flexible schedule which she demanded); Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 39 (1st Cir. 2001) (plaintiff's claims that she was denied the opportunity to work from home did not support alleged race and sex discrimination under Title VII without evidence that other employees who were allowed to work from home were similarly situated in all respects).

    30 See 29 U.S.C. §2612(a)(1)(D).

    31 See, e.g., Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933, 940 (8th Cir. 2000), aff'd, 535 U.S. 81 (2001) (finding that employer's failure to formally designate any of employee's seven months of company leave as qualifying leave under Family and Medical Leave Act (FMLA) did not result in FMLA violation when employer refused to reinstate employee after seven months of leave; company's employee leave program was far more generous than baseline established by FMLA, and employee's medical condition rendered her unable to work for substantially longer than FMLA 12-week period); Frederick v. Brandywine Hosp., Inc., No. 03-3362, 2003 WL 21961372, at *1 (E.D.Pa. July 1, 2003) (finding that "[p]rotection under the FMLA is strictly limited to a 12 week period"); Panto v. Palmer Dialysis Ctr., No. 01-6013, 2003 WL 1818990, at *6 (E.D.Pa. April, 7, 2003) (holding that employer policies that surpass the requirements of the FMLA are not protected by the FMLA) Cormier v. Littlefield, 112 F. Supp. 2d 196, 200 (D. Mass. 2000) (finding that an employer is not required to hold an employee's position open beyond the 12-week period when that employee is unable to return when the FMLA leave expires); Donnellan v. New York City Transit Authority, No. 98 Civ. 1096 (BSJ), 1999 WL 527901, at *5 (S.D.N.Y. July 22, 1999) (finding that where plaintiff requested and was granted FMLA leave but was still not physically able to return to work after 17 weeks of leave, plaintiff was not deprived of any substantive rights when she was terminated).

    32 See, e.g., Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452, 461 (E.D.Pa. 2005) (holding that an indefinite leave of absence is not a "reasonable accommodation" under the ADA, and that an employee who requires such absence is not, therefore, a "qualified" individual); Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998) (holding that leave provided to a disabled employee should not exceed leave provided to a non-disabled employee); Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1334 (10th Cir. 1998) (where an employee fails to provide an expected duration of leave, indefinite leave is not a reasonable accommodation under the ADA).

    33 Guglietta v. Meredith Corp., 301 F. Supp. 2d 209, 213-14 (D.Conn. 2004) (holding that child rearing was not "sex plus" characteristic which could be considered in conjunction with gender in claim by female television program producer alleging that she was wrongfully terminated, in violation of Title VII, after being assigned to shift she could not work due to day care problems involving her children); Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492-94 (D.Colo.,1997) (holding that employer's refusal to provide employee with part-time schedule for breast-feeding or childrearing is not conduct prohibited by Title VII, since breast-feeding or childrearing are not "related medical conditions" of pregnancy or childbirth, within meaning of the Pregnancy Discrimination Act (PDA)); Roberts v. U.S. Postmaster General, 947 F. Supp. 282, 288-89 (E.D.Tex., 1996) (finding that Title VII, as amended by Pregnancy Discrimination Act, does not protect people wishing to take child-rearing leaves, as opposed to women wishing to take pregnancy leaves).

    34 See, e.g., Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 681-682 (8th Cir. 2001) (holding that regular attendance was essential function of job of receiving clerk in retail store, such that employee was required to perform such function in order to be qualified individual under ADA); Nowak v. St. Rita High School, 142 F.3d 999, 1003-1004 (7th Cir. 1998) (holding that where teacher's attendance was essential element of his job, even where teacher had the skills and physical ability to perform his job prior to his termination, he could not be considered a "qualified individual" under the ADA); Tyndall v. National Educ. Centers, Inc. of California, 31 F.3d 209, 213 (4th Cir. 1994) (finding that business college instructor who suffered from lupus was not "qualified" for her position within meaning of ADA, as even though she received "excellent" and "good" performance evaluations, she could not meet the attendance requirements of the job, missing more than 40 days of work in seven months, even with college's extensive accommodations).

    35 See supra note 26.

    36 See, e.g., Singh v. The Home Depot, Inc., No. 00 CV 6497(SJ), 2003 WL 21909776, at *5 (E.D.N.Y. July 24, 2003) (rejecting employee's claim for Title VII race discrimination where employee consistently violated employer policy requiring that he work specified hours, of which he was aware – a legitimate, nondiscriminatory reason for termination); Capruso v. Hartford Financial Services Group, Inc., No. 01 Civ.4250(RLC), 2003 WL 1872653, at *5-6 (S.D.N.Y. April 10, 2003) (holding that Title VII did not prohibit discrimination based on a mother's choice to work part time, rather than full time; when mother learned that she wouldn't be promoted because she was part time, she could have returned to a full time schedule, but she instead chose to remain on a part time schedule and enjoy the benefits of her flexible work arrangement).

    37 See, e.g., Cal. Civ. Code §43.3 (West 1982); Conn. Gen. Stat. §53-34b (2003); 2004 O.C.G.A. §§31-1-9 (Supp. 2005), 34-1-6 (2004); Fla. Stat. §383.015 (2002); Haw. Rev. Stat. §367-3 (2004); 820 Ill. Comp. Stat. 260/10 (1993); Ind. Code §16-35-1 (1993); Me. Rev. Stat. Ann. tit. 5, §4634 (West 2002); Md. Code. Ann., Health-Gen. §20-801 (2003); Minn. Stat. §181.939 (1993); Mo. Rev. Stat. §191.918 (2004); Mont. Code Ann. §50-19-501 (2004); N.H. Rev. Stat. Ann. §132:10-d(2006) et seq. (2004); N.J. Rev. Stat. §26:4B-4 (1996); N.M. Stat. Ann. §28-20-1 (LexisNexis 2004); N.Y. Civil rights Law §79-e (McKinney 2001); N.C. Gen. Stat. §14-190.9 (2003); R.I. Gen. Laws §23-13.2-1 (1997); Tenn. Code Ann. §50-1-305 (1999); Tex. Health & Safety Code Ann. §165.001 et seq. (Vernon 2001).

    38 See e.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D. Colo. 1997) (holding that casino was not required to provide part-time schedule for blackjack dealer who was breast-feeding an infant, "because [n]othing in the PDA, or Title VII itself, obliges an employer to accommodate the child-care concerns of breast-feeding workers"); Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305, 310 (S.D.N.Y. 1999) (rejecting plaintiff's argument that employer's refusal to provide acceptable facilities for her to pump breast milk violated Title VII on a "sex-plus" theory, because there was no comparable subclass of members of the opposite gender, and therefore plaintiff could not show that she was treated differently from similarly situated men). But see Fortier v. U.S. Steel Group, No. 01-CV-2029, 2002 WL 1797796, at *3 (W.D. Pa. June 4, 2002) (court found that plaintiff stated a claim under Title VII, the PDA, and the Pennsylvania Human Rights Act for discrimination based on her status as a pregnant woman where supervisory gave plaintiff choice to voluntarily resign or face de factor probation after plaintiff announced her intent to breast feed).

    39 No. 96 CV 3980, 1999 WL 199251 (N.D. Ill. March 30, 1999).

    40 Id. at *13.

    41 118 F. 3d 1151 (7th Cir. 1997).

    42 Id. (quoting Ilhardt, 118 F. 3d at 1155). But see Lovell v. BBNT Solutions, LLC, 295 F. Supp. 2d 611 (E.D.Va. 2003) (finding that while "[n]either the [EPA itself] nor controlling circuit authority squarely address[] whether full-time employees are, on that basis alone, unsuitable comparators for part-time employee plaintiffs." "[W]here, as here, the plaintiff [was] required to work three quarters of the hours worked by the putative comparator and in fact on occasion work[ed] more, and where the plaintiff's actual tasks, duties, and responsibilities [were] essentially similar to those of the putative comparator, then the issue becomes one of fact for the jury to resolve").

    43 Id.

    44 But see Ilhardt, 118 F.3d at 1157, where plaintiff's unsuccessfully argued that her employer had a policy where it would lay off part-time workers in the event of a reduction in force prior to full-time workers and that this was a violation of Title VII, as it would have a disproportionate impact on female employees. In support of her argument that her employer's part-time policy disproportionately affected female employees,Illhardt cited studies done in the 1970s and 1980s finding that the majority of part-time workers are women with child-care responsibilities. Id. Illhardt asks the court to take judicial notice of the results. Id. The Illhardt Court rejected this argument, finding that, "[a]s this [was] the only evidence Ilhardt ha[d] presented to support her claim, she ha[d] not demonstrated that a genuine issue of material fact exists as to whether [her employer] ha[d] a policy of favoring full-time over part-time workers, or whether such a policy has a disparate impact on women." Id.

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