Over the next four posts, we’ll focus on the rights of those who have suffered discrimination because they are caring for a child, parent, or other family member.
We hear every day about employees, especially women, trying to juggle parenting and work duties. Employers are generally aware that some of their employees are parents who will occasionally have to take time away from work to care for their children.
But some employees have to care for a parent instead of a child. Other employees have to care for a parent in addition to a child. Not all employers are very accommodating when an employee has to take time off from work to care for a child; those employers may be even more resistant to accommodating time off to look after a parent. These employees with demanding family responsibilities are sometimes subject to discrimination and retaliation. That was the case for Rebecca Snow.
Snow v. The Vanguard Group, Inc.
The Vanguard Group, Inc. (“Vanguard”) hired Rebecca Snow as a senior-level engineer in July 2000. Five years later, Snow moved to the Production Support Team. She received positive performance reviews there in 2007, 2008, and 2009.
In July 2009, Snow’s mother became ill, and Snow took leave under the Family and Medical Leave Act of 1993 (FMLA) to take care of her. After Snow went out on leave, Kim Keller, the lead manager at Snow’s Vanguard office, directed Snow’s immediate supervisor, Wanda Kirschbaum, to give Snow a negative performance review. This negative review was based on Keller’s belief that Snow wasn’t devoted to her job 100% of the time.
When Kirschbaum refused to give this negative evaluation, Keller moved Snow to another department. Snow was much less qualified for her job in this new department. When Snow’s work product predictably began to suffer due to her inexperience, she received a negative performance review. In September 2010, Snow received a written 60-day disciplinary alert.
Snow complained about this negative reprimand to human resources. At that point, she received a formal warning and was demoted. Snow accepted the demotion to avoid being fired. The demotion lowered Snow’s pay and benefits.
In 2011 and 2012, Snow again received positive performance reviews. Then, in the spring of 2013, Snow took more time away from work to care for both of her parents. She used a combination of FMLA leave, paid time off, and bereavement leave. Following her leave, Snow’s negative performance reviews returned.
In July 2013, Snow applied for a developer position at Vanguard. During her interview, Snow was questioned about her FMLA leave usage and asked whether she had any siblings who could care for her parents. Ultimately, Snow was denied the position, and a younger employee was hired instead.
Keller reportedly stated that Vanguard had a problem with senior-level employees, such as Snow, staying at the company too long and taking up jobs that she thought should be filled by younger employees.
Believing that she had been denied the position because of her use of FMLA leave, her age, and her sex, Snow again complained to human resources. After she filed this complaint, Snow received another written 60-day disciplinary alert. Snow’s 2013 performance review noted that she had “further development needed,” which made her ineligible for bonuses.
Snow filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming sex and age discrimination as well as retaliation. Eventually, Snow sued Vanguard, claiming discrimination and retaliation under the FMLA, the Age Discrimination in Employment Act of 1967 (ADEA), and applicable state laws. After filing her EEOC complaint and suing Vanguard, Snow was fired in 2014. She then modified her lawsuit to include a wrongful termination claim.
The FMLA and the ADEA
The FMLA provides eligible employees the right to take protected, unpaid leave for a qualified reason, including medical necessity or family responsibilities. Caring for a very sick parent, as Snow did, usually qualifies for FMLA leave. The FMLA prohibits an employer from interfering with or discriminating or retaliating against an employee who exercises his or her FMLA rights.
The ADEA makes it illegal for an employer to discriminate against an employee based on age, once the employee is 40 years of age or older.
Luckily for Snow, the FMLA and ADEA applied to her case. Snow argued that she faced discrimination because she was an older worker at Vanguard. Further, Vanguard did not dispute the fact that Snow was entitled to FMLA leave protections. After surviving Vanguard’s motion for summary judgment, Snow negotiated a settlement, closing the case and ending her ordeal with Vanguard.
What Was Really Going On?
In short, Vanguard didn’t like the fact that Snow was taking time off from work to take care of her sick parents. Vanguard knew that Snow was exercising her legally protected rights, and there was little it could do directly to keep her in the office. As a result, Vanguard had to find another way to discriminate against Snow to protest the time she was taking off from work.
For example, Vanguard tried to manufacture a reason for firing Snow on the basis of her poor performance when it transferred her to a different job she wasn’t qualified for in another department. Additionally, it didn’t help Vanguard’s case that its management had stated that older employees needed to leave the company to make room for younger staff.
What Is the Significance of This Case?
Snow’s case is just the tip of the discrimination iceberg. Regardless of whether employees use leave specifically provided by law or use sick days, vacation days, or other paid time off to care for family members, those employees often face backlash from their employers. This type of discrimination, often referred to as family responsibilities, caregiver, or eldercare discrimination, is making up a larger and larger percentage of discrimination lawsuits.
The FMLA is the only law that directly targets family responsibilities or eldercare discrimination. Therefore, many employees have to find other laws that indirectly apply to the discrimination they’re facing, especially in situations where the FMLA may not apply. We’ll address how employees may be able to do this in later blog posts in this series.
Summing It Up
- Employees face increasing discrimination from their employers as a result of taking time off to care for family members, especially aging parents.
- This form of discrimination, often referred to as family responsibilities or eldercare discrimination, is on the rise, resulting in many more discrimination lawsuits.
- Depending on the facts of the case, employees may be able to use existing discrimination laws, such as the FMLA, to sue their employers. However, these laws don’t always apply in family responsibilities and eldercare discrimination cases, so alternative approaches may be needed.
Do you believe your employment rights have been violated while you’ve been caring for a parent or other family member? Please contact our office so we can help you understand the law and your rights.