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Workplace Legal Rights

~ By Janet Chung, Legal Voice

People who are expecting a new child know that their lives are about to change drastically.  But how many expectant parents spend much time thinking about what their workplace legal rights will be as parents?

If they haven’t been doing so, there is good reason for expectant and new parents to educate themselves about some basic laws that impact how parents are treated at work.  Consider these data:

Family caregiving responsibilities can put your family economic security at risk.

One study found that one in six workers who took time off for illness or to care for a sick family member was fired, disciplined or threatened by his or her employer.  Many employees don’t have access to any job-protected family leave – especially already vulnerable low-wage workers.  Even if they do, it is most often unpaid; only eight percent (8%) of workers have access to paid family leave to care for newborns or other family members.   Thus, employees are often faced with a Catch-22 – taking the time they need to care for their family, or earning needed income for the family.

Identification as a parent can affect how employers treat you.

A 2009 study showed that a woman’s status as a mother can hurt her at work – a phenomenon known as “maternal profiling.”  In one study, researchers sent out fake resumes for two equally qualified candidates – but one had subtle cues to indicate parental status, such as being a PTA officer.  Childless women were 2.1 times more likely to be hired than mothers.  Even if hired, mothers were offered an average of $11,000 less in pay.

In the same study, mothers were consistently rated as less competent and less committed to their jobs than non-mothers.  Although men who identified as fathers were rated more positively than non-fathers, a different 2003 study found that men who took parental or elder care leave were rated more negatively than their male counterparts who did not take leave.

These are worrisome findings, considering that in 2008, seventy-one percent (71%) of mothers with children were in the labor force.  Also, women are increasingly important - or even the sole – contributors to family income.

The good news:  there are legal rights that can protect you in the new reality of your life as a working parent.  And Washington has been at the forefront in passing laws that help working families meet their caregiving needs while maintaining employment.

Anti-discrimination laws. Several federal and state statutes protect workers from discrimination based on sex, as well as disability and other bases.  Washington’s regulations prohibiting pregnancy discrimination (a form of sex discrimination) are particularly clear and strong.  Also, as of 2009, Washington law prohibits discrimination based on breastfeeding in a “place of public accommodation,” which includes some workplaces.

Further, increasingly, workers with family caregiving responsibilities are succeeding in bringing claims that employers have violated these laws by treating them differently.  For example, these are some red flags that an employer might be violating anti-discrimination laws:

  • Only female applicants are asked whether they are married or have young children, or about their childcare and other caregiving responsibilities;
  • The employer subjects women to less favorable treatment soon after it learns of their pregnancies, or after they have children – for example, refusing to allow flexible work hours when it previously allowed them;
  • Workers without children or other caregiving responsibilities receive more favorable treatment than similarly situated co-workers who are caregivers;
  • Parents are not afforded job opportunities or promotions, based on the assumption (even if purely benevolent) that they would prefer to be spending time with their children.

In short, employers cannot legally treat employees with family caregiving responsibilities – whether they are men or women – differently if their acts are based on gender-based stereotypes, or otherwise based on a protected characteristic (such as association with a family member with a disability).

Maternity disability leave. In Washington, workers at businesses with eight or more employees are entitled to a job-protected leave of absence for the entire period of time that they are sick or temporarily disabled because of pregnancy or childbirth.  (Most doctors routinely certify a six-week period to recover from childbirth.)  The employer must treat the leave the same as it would for leave for sickness or other temporary disabilities; for example, if it provides paid leave under those circumstances, it must provide paid maternity disability leave as well.

Family and medical leave. Both state and federal law allow eligible employees to take up to a total of 12 weeks of unpaid leave for the birth or placement of a child, to care for certain family members with serious health conditions, or for their own serious health conditions.  To qualify, the employee must work for a business with 50+ employees and have worked there for at least 12 months for 1250 hours in the preceding year.  These laws also protect employees who take leave from retaliation based on their having exercised their leave rights.
Note:  Women who take pregnancy disability leave are entitled to the balance of available family leave to care for their newborn, or for a seriously ill family member.  Thus, in a typical situation with no pre-birth pregnancy complications, an eligible woman is entitled to pregnancy disability leave to recover from childbirth (usually six weeks), plus up to another 12 weeks of family leave to care for the newborn.

Paid parental leave. In 2007, the Washington became only the second state to create a Family Leave Insurance program for new parents, which would provide up to 5 weeks of benefits of $250 per week for eligible employees for the birth or placement of a child.  Initially slated to go into effect in October 2009, implementation has been delayed until 2012 because of the unprecedented state budget shortfall.

Family Care Act – use of sick leave. While this law does not require employers to provide paid leave, it allows Washington workers who have paid leave to use it not only for their own illnesses, but also to care for ill family members.  In particular, the parent can use their paid leave to care for a broad range of children’s medical needs, including preventive health care.

For more information about laws and legal developments impacting your rights as a parent in the workplace, check out these resources:

About the Author

Janet Chung is an attorney with Legal Voice.  Founded in 1978 as the Northwest Women's Law Center, Legal Voice is a non-profit organization that fights to ensure justice for women and girls in the Pacific Northwest by bringing groundbreaking cases, advocating for landmark legislation, and providing legal information through its Self-Help Program.

Janet has broad legal experience, including private sector employment and business litigation and teaching law.  She currently focuses her work at Legal Voice on advancing gender equity in employment and education.  Janet is also a PEPS alum and the mother of two young boys, who keep her on her toes and bring laughter and joy to her life.

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