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Can having a large family give rise to a Title VII gender claim?

October 5, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

Family care-giving is a difficult issue for many employers. Many employers allow employees some flexibility when it comes to family care issues.   But when the caregiving overwhelms the employee’s day or days, how much protection will Title VII provide against gender and family caregiving discrimination?  A Seventh Circuit Court case may to provide some guidance.

Julie Gingras, the mother of five children, was hired by the County of Milwaukee’s Behavioral Health Division (BHD) as an Education Services Coordinator.  During the interview and hiring process, Gingras discussed her child care obligations with BHD and how those obligations would affect her work schedule. With all this information in hand, in June 2013 BHD made an offer to hire Gingras, who would be subject to a six-month orientation period.

BHD informed Gingras that her first day of work would be July 8, 2013.  Gingras told BHD that she would likely be unable to start work that day because of the inability to find a sitter on short notice.  She also told them that she would like her first day of work to be July 15th, but she would not start until she had a firm offer in writing.  HR provided confirmation in writing, adding that her shift time would be 8:00 AM- 4:30 PM and if she had difficulties with that time slot, she should talk to her supervisor.

Gingras eventually started work on July 15th, although she noted to HR that her work times were different than what she was told in the interview process.  HR told her to take the matter up with her supervisor.  She began her employment by attending orientation sessions from July 15, 2013, to July 19, 2013, and from July 22, 2013, to July 26, 2013. 

After orientation, Gingras informed her supervisor about needing to attend weekly future appointments for her children, including physical therapy appointments, speech therapy appointments, appointments at her children’s school, and “birth-to-three” classes for her newborn twin daughters. She told her supervisor that the “plan” was to schedule these appointments “for later on in the afternoon” so as to not disrupt her work schedule, but there was no guarantee because “[o]ftentimes these appointments were scheduled a day or two before,” and she could not dictate the times of the appointments.

Allegedly, Gingras’ supervisor responded to these requests with such comments as, “Why do you need to do that?” “You can’t do that after work?” “Can’t your husband take them?” and “I understand, but we need you here at work.”

Gingras then gave short notice to her supervisor on Friday July 26th that she needed to take three of her children to dentist appointments on Monday, July 29, 2013. It was not clear whether her supervisor got the notice that Friday or not. When her supervisor sent her an email on Sunday showing Gingras a nice introduction note about her that would be sent to staff, Gingras reminded her supervisor that she would be off Monday. The supervisor thought it would be for the morning only, Gingras for the full day. 

On July 30th, BHD terminated Gingras.  Gingras then sued for gender and family caregiving discrimination under Title VII.  The District Court held for BHD.  On appeal, so did the 7th Circuit Court of Appeals.  

The parties argued whether a “sex plus” claim should be recognized.  The Court pointed out that Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather on the basis of family responsibilities plus gender. To clear that bar, Gingras argued that as a woman she was presumed by BHD to have greater family-care obligations than a man in the same circumstances, and therefore was less likely than such a man to perform her job well. Therefore her termination was due to sex discrimination in addition to family care discrimination.

However, the Court did not buy either argument.  BHD knowingly hired Gingras despite being told of her family caregiving responsibilities.  The Court held that Gingras own actions and statements gave rise to BHD’s belief that her performance would be impacted by her absenteeism. 

As a general rule, employers should try to accommodate the occasional family caregiving issues.  But as the Court pointed out, “Title VII is not a ‘get out of work free’ card for parents with young children — whether male or female.”  Therefore, when confronted with employees taking excessive time off for family caregiving, managers need to focus on whether the time off is negatively impacting performance, in particular in cases where FMLA does not apply.

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