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family responsibilities discrimination

Family Responsibilities Discrimination Series, Part 4: State Laws You Can Use to Fight Back

The previous blog post in this series discussing family responsibilities discrimination (FRD) identified federal laws that employees can use to take on employers that discriminate against them based on their caregiving responsibilities. This final blog post looks at the state laws and legal theories that are available to combat FRD.

State Laws Employees Can Use

While many FRD lawsuits will rely heavily on federal law, employees shouldn’t overlook applicable state laws. Some of these state laws and legal principles are not typically used in an employment discrimination context, but they may be useful within specific circumstances.

Four state laws that could potentially be used to combat FRD are the following:

  • breach of contract,
  • intentional infliction of emotional distress,
  • wrongful termination, and
  • state antidiscrimination caregiver laws.

We’ll examine each of these in turn.

Breach of Contract

A breach of contract occurs when one of the parties to a contract fails to comply with one or more of that contract’s terms. Within the employment context, the contract could be a standalone document negotiated between the employer and employee, often with legal counsel. Other times, an employee policy handbook could be construed as a contract.

For example, an employee policy handbook might state that employees will be allowed up to three weeks of paid leave to care for an immediate family member. If an employer then refuses to allow an employee to use that paid leave, the employee may have a case against the employer for breach of contract.

Breach of contract lawsuits won’t always work, though. Usually, the employee will have a tough time proving the existence of a contract. Most employees do not have a standalone employment contract, so they have to find another way to establish that a contract exists.

An employment policy handbook is a common place to start, but the handbook may contain language stating that the employer does not intend for the handbook to create a contract. An employee might instead argue that there is an oral agreement allowing caregiver time off. Unfortunately, this type of case comes down to who the jury or judge believes more: the employee or the employer.

What if an employee asks the boss for time off work through e-mail, and the boss allows the leave? Does that create a contract? Not necessarily. For a contract to exist, there must be consideration.

Consideration refers to something of value that each party promises to the other. In this e-mail hypothetical, the boss has given consideration in the form of permission to take time off from work. But what has the employee given? Nothing. Therefore, no contract was formed through the e-mails.

What if we change the hypothetical around a little? Now, in return for taking time off from work for caregiving duties, the employee agrees to work on weekends instead of only on weekdays. In this modified hypothetical, both sides have now given consideration, and courts are much more likely to find that a contract exists.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress (IIED) is a civil cause of action in which a plaintiff can recover damages for substantial emotional distress suffered due to the outrageous and extreme conduct of the defendant. The key here is that the defendant’s conduct must be intentional, extreme, and outrageous.

Imagine that an employer calls an employee into her office and tells him, in private, that he’s taking too much time off work to care for his child. She says if he wants to get promoted, he’ll have to stop leaving work early to pick his child up from school. Is this FRD? Possibly. Is it IIED? No, it is not.

Let’s change this situation slightly. Now the boss doesn’t have the conversation with her employee privately in her office. Instead, she e-mails the employee, telling him that he can no longer leave work early to care for his child. In her e-mail, she uses profanity to insult and demean him because he’s not the family breadwinner. She then deliberately copies the entire company on the e-mail. If this e-mail—and the attendant fallout—cause severe emotional distress for the employee, then he likely has an IIED claim.

The problem with IIED is that it will only apply in very limited cases of FRD. Courts are hesitant to find IIED, because having one’s feelings hurt is a normal part of life. Therefore, the conduct has to be extreme, outrageous, and intentional. This is a difficult hurdle to get over in court.

Wrongful Termination

Most states allow for at-will employment, and most workers are hired as at-will employees. At-will employment means that employers can fire employees for any reason (or no reason) and at any time, subject to a few exceptions. Likewise, employees may quit their work at any time and for any reason.

Therefore, to claim wrongful termination, the employee will have to prove that he or she wasn’t employed at will, usually by arguing that an employment contract existed or that there was an exception to employment at will.

If an employee argues that his or her wrongful termination was the result of FRD in violation of an employment contract, then the employee’s underlying cause of action will be breach of contract, as discussed above.

Suppose an employer fires an at-will employee based on the employee’s caregiver status, and no employment contract existed. To successfully claim wrongful termination, the employee will need to prove that an exception to at-will employment applied. The most accepted of these is the public policy exception.

The definition of public policy will vary based on the state trying to define it. In some states, a public policy is a specific right or legal obligation provided for in a specific statute. In others, it might be an overarching public interest described in a state’s statutes, court cases, constitution, regulations, and directives.

To use a public policy exception to claim wrongful termination, the employee alleging FRD will have to establish that a public policy forbids discrimination based on an individual’s caregiving duties. This typically isn’t easy, but it can be made much more straightforward if a state has a law that specifically outlaws FRD.

State Antidiscrimination Caregiver Laws

Unfortunately, most states do not have laws in place specifically addressing FRD. However, three states currently do:

  • Alaska,
  • Minnesota, and
  • New York.

Washington, D.C., also has its own FRD law. A few dozen other cities and municipalities also have an FRD law in place.

Some of these state FRD laws are limited to providing care to minor children. For example, Alaska’s statute includes “parenthood” as a protected employee status. Washington, D.C., goes further, prohibiting employment discrimination based on “family responsibilities.” Similarly, in New York, it is illegal for employers to discriminate based on an employee’s “familial status.” And in Minnesota, “familial status” and “family caregiver status” are now included as protected employee classes.

In these localities, employees experiencing FRD should have the easiest path to sue their employers for FRD.

Summing It Up

  • The best way to sue for FRD using state, rather than federal, law is to use a specific FRD law. However, only three states, Washington, D.C., and a few dozen localities have these laws in place.
  • An employee who doesn’t live in an area with an FRD statute will have to rely on other causes of action, such as breach of contract, intentional infliction of emotional distress, or wrongful termination.
  • These alternate legal theories can work, but only if specific facts and circumstances apply.

Do you believe that you’ve been discriminated against at work because of your status as a caregiver? Are you trying to figure out how to fight back? Please contact our office so we can help you assess your options and understand your rights.

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