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Although my practice is now focused on special education matters, I still get plenty of employment law questions these days, as is evident from the many comments I am still getting on my FMLA post.  From time to time, an employee will ask me if something that was said or done in their workplace constitutes discrimination.  You may be subject to a managerial decision or workplace policy that seems unfair, arbitrary or biased, and even seems to hit you harder than your coworkers because of your status as a woman, or a mom, or a person with a disability, etc.  But legally actionable discrimination, such as that prohibited by Title VII, for example, needs to meet very specific criteria showing disparate treatment of, or a disparate impact on, an employee or class of employees on the basis of one or more protected characteristics.  Firing a woman because the boss was in a bad mood that day is not discrimination, even if she was a stellar employee and the decision is clearly ridiculous.  Firing a woman because she is a woman is discrimination, period . . . although, if it just so happens that the woman in question was also a poor-performing employee and she likely would have been fired anyway, you can bet that the discrimination case is going to be a bit complicated to tease out.

A really thorough analysis of whether and when something constitutes discrimination in the employment context is impossible to provide here.  Haha, just kidding, it’s totally possible, but I’m lazy, and truthfully, the law is really boring when it comes down to it.  But what I do  find interesting are the less obvious situations when an employee is faced with a subtle change in her everyday work environment (or “a change in the terms or conditions of employment,” if you’re feeling fancy) that could indeed be deemed a violation of the federal and state laws that protect us from discrimination on the basis of sex, or the fact that we are pregnant or have children.  (YMMV – insert the usual disclaimer here that you absolutely  must check your individual state’s laws to see exactly how you are protected for various statuses, including being pregnant or a parent.)

 

You may want to dig deeper and question whether there’s a discriminatory motive at work if:

You were demoted, transferred, or subject to some other (negative) change following announcement of a pregnancy, use of sick time for prenatal appointments, or return from maternity leave.

If you are subject to some kind of adverse employment action, and it just so happens during a time when your pregnancy or status as a mother is especially visible, you may not be paranoid in wondering if the reasons for such action are less than neutral.  Find out if anyone else was impacted by the change, and keep track of all your emails, memos, and other communications concerning the change.  A disciplinary action or termination also constitutes an adverse employment action, but in those scenarios, it’s usually more obvious and blatant when discrimination is actually occurring.  An employee may be less likely to question why she’s suddenly getting fewer or worse hours, as opposed to simply being booted.

Your position has not changed, but you are getting less work or being passed up for plum assignments or promotions.

A busy, productive employee is a needed and valued employee.  If the work starts drying up, and there’s no obvious change in your company’s workflow or client base to explain it (especially where everyone else seems busy), it’s time to find out why.

Your performance reviews rated you a star performer—until you had kids.

Maybe you’re an amazing employee, maybe you’re kind of average, or maybe you’ve just been sort of meh, but your supervisors were too lazy or too nice to tell you so.  No matter which category you fall into, you can be sure that if the management is looking to toss you out in the cold, all those little things that didn’t mean anything before will suddenly fall under the microscope.  It could be that the stated concerns are valid—but why only after having kids are they such an issue (and why only for you and not your coworkers)?

You’re a father, and you get ribbed by the guys for wanting or taking time off following the birth or adoption of a child.

There is a whole body of case law describing when good-natured teasing crosses the lines into discriminatory harassment on the basis of gender or any other protected characteristic.  But the point is that you cannot be treated differently, or subject to harassing conduct that makes your workplace intolerable, just for exercising your rights or speaking up about them.  Verbal or physical actions that rise to the level of threatening or intimidation may constitute a hostile work environment.  This is certainly true in the more traditional sort of sexual harassment case (how sad that such a thing can be deemed “traditional,” eh?), but this is no less true when men and women alike are subjected to such conduct for their failure to conform to societal gender roles.

You feel embarrassed or ashamed to express (pump) breastmilk in your workplace … or you are denied the right altogether, or need to fight for it.

Sad.  Reasonable breaks and a secure location to pump that is not a bathroom is pretty much required in EVERY workplace now.  But if you get teased for doing it or hear lots of “gross!” comments, stay calm, keep track of those interactions, and talk to a trusted colleague … or lawyer … about how to address such nasty behavior, which interferes with your work and your exercise of your rights.

During an interview, you get asked how you are going to juggle childcare responsibilities if you are hired for the job.

I would hope that most people recognize this as a taboo topic to raise if you’re interviewing a job candidate, but you wouldn’t believe how often I hear that an interviewee was asked a question along these lines.  It is one thing to address conflicts between an employee’s personal life and work responsibilities when they actually arise and have an impact on performance, but it’s off limits to assume that a potential employee will have difficulty juggling work and family demands based upon sex or marital status.

You call HR with a question about FMLA or your other rights to take leave if you were to become pregnant, and you suddenly experience an adverse employment action (see above) or feel you are being treated differently.

It’s illegal to retaliate against an employee for exercising her rights or standing up for someone else in the exercise of his or her rights.  Your employer doesn’t have the green light to single you out just for asking about or supporting your rights or those of your coworkers, because that would have a chilling effect on the exercise of those rights.

 

Sadly, I can probably think of a ton more of these.  As you can see from the above descriptions, the mere fact that one of these situations occurs doesn’t mean you have a foolproof discrimination lawsuit at your disposal.  As always, consult an attorney about your individual situation.

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