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Knowing the Law Can Help Workers With Child-Care Duties Protect Themselves

By Rebecca Gardyn

A knowledge of current employment law can help nonprofit workers protect themselves against being

ALSO SEE: ARTICLE: How Employees With Family Responsibilities Can Guard Against Discrimination on the Job

discriminated against at work for tending to their family responsibilities, experts say.

No one law makes family-responsibilities discrimination illegal, says Joan Williams, director of the Center for WorkLife Law at the University of California's Hastings College of the Law, in San Francisco, which works to help eliminate such bias. Rather, depending on the particular case, lawyers draw upon various legal theories and federal and state statutes to bring their cases to court.

The most common laws used are Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on gender, and the Pregnancy Discrimination Act, an amendment to Title VII. Other federal laws that employees should familiarize themselves with are the Americans With Disabilities Act of 1990, which makes it illegal to discriminate against a caregiver responsible for someone with a disability, and the Family and Medical Leave Act, which guarantees 12 weeks of unpaid leave to eligible employees who need the time after the birth or adoption of a child, or to tend to an ailing family member. (More information on the first three laws can be found on the Equal Employment Opportunity Commission Web site. Information on the Family and Medical Leave Act can be found at the U.S. Department of Labor's Web site.

Small Organizations

There are many scenarios that workers may not realize are illegal, so it can be helpful to read about other lawsuits, adds Ms. Williams, whose organization has compiled a database of more than 1,000 cases involving caregiver discrimination. Many people don't realize, for instance, that interfering with implementation of the Family and Medical Leave Act is a violation of federal law, she says.

"I run a small NGO and we've had three maternity leaves this year, so I know it isn't easy to have staff out of the office," says Ms. Williams. "But employers must remember that it is illegal to discourage someone from taking leave or to penalize them for taking it."

Workers at small organizations should become particularly familiar with these laws because they may have less legal recourse should they become targets of discrimination. For instance, the Family and Medical Leave Act only applies to employers with 50 or more workers, and employees are only eligible if they have worked at least 1,250 hours in the past 12 months. Title VII of the Civil Rights Act and the Pregnancy Discrimination Act only apply to employers with 15 or more employees.

Each state has its own set of discrimination laws as well. For instance, until last summer, New Hampshire didn't include charitable groups in its laws' definition of "employer," therefore exempting nonprofit organizations from having to abide by discrimination laws altogether. (More information about local laws can be obtained by contacting the state commission in charge of anti-discrimination issues, collectively known as Fair Employment Practices Agencies, a list of which can be found on the Job Accommodation Network Web site.

Filing Complaints

If any employees believe they have a legitimate discrimination claim, they should document relevant conversations and e-mail messages, and save any positive performance evaluations that may be used as evidence down the road, says Justine Andronici, an employment lawyer in Washington who has represented victims of bias against their nonprofit employers and is herself a nonprofit veteran. The aggrieved worker may want to consult with an attorney who can help determine whether the employee's concerns are valid, she says. The Center for WorkLife Law maintains a hotline that workers can use to consult free with a lawyer about their situations. The hotline number is: (800) 981-9495.

Some organizations have established procedures, usually outlined in the employee manual, for filing discrimination complaints internally. "It can be to an employee's great interest later on if the discrimination does end up in termination to have complained through the established procedure," says Ms. Andronici. "Granted, complaining does escalate the situation to some extent, but on the other hand it can help legally protect the employee."

If a worker doesn't believe his or her organization is taking a claim seriously, the next step is to file a complaint with the Equal Employment Opportunity Commission, which will launch a formal investigation. But time is of the essence: Charges must be filed with the agency within 180 days of the alleged violation, or 300 days if the charge is also covered by a state or local anti-discrimination law. The complaint must be filed before an employee can proceed with a private lawsuit. (Instructions on how to file a complaint with the agency can be found on its Web site.)

"The bottom line is that if you feel that you're being treated unfairly because you have caregiving responsibilities, don't assume that that's OK," says Ms. Williams, adding that she believes that much of what the news media describe as women "opting out" of the workplace is actually female employees leaving their jobs because they are being discriminated against.

"If you really do want to stay home with your kids, more power to you," she says. "But if you're actually being driven out by caregiver discrimination, it does a disservice to everyone to gracefully bow out. Doing so only reinforces the stereotypes, not only for you but for everyone else."