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Discrimination Based on Family Size
Editor's Note
Discrimination Based on Family Size
A male manager claims he was passed up for promotion because he had seven kids. He had seven kids, at least in part, because of his religion.
It's potential religious discrimination and a fascinating case.
It's also a little weird. Who complains about how many kids someone has? My sense is that the male VPs thought wanting a big family and spending time with family was not masculine or executive enough, which would also be gender discrimination based on stereotypes about what executives' families should be like.
I wonder what his experience would have been like if the employee was the mom instead of the dad? Actually, I know. It would have been worse and mom probably would not have even made it as far as dad did.
It's certainly gender discrimination when an employer asks a woman whether she has or intends to have kids. The fact that women have babies is the primary reason for our lack of progress in closing gender pay gaps.
To the extent someone is a caretaker of someone with disabilities, employers can't retaliate or discriminate under the Family Medical Leave Act and the ADA. Under Title VII, caretaker discrimination is a subset of gender discrimination.
State laws also matter when there is potential discrimination based on someone's role in a family. In California, "familial status" is protected in both housing and employment decisions. You can't hire or not hire someone based on whether or not they have kids. Or how many.
It will be interesting to see how this case turns out. Here's Robin Shea with the story and analysis.
- Heather Bussing
Dad-of-seven will go to jury on religious discrimination.
This sounds like the kind of thing that might happen to a woman, but this time it (allegedly) happened to a man.
A devout Catholic man (we'll call him "Dad") was hired as a sales rep, and during his employment, he and his wife had seven kids. Presumably not all at once.
Dad apparently had an outstanding work record. He shared with his boss, "VP 1," his religious beliefs, which I assume included that he and his wife did not believe in using artificial contraception.
Dad applied twice for promotion to regional manager and was turned down both times. Each time, the person selected had prior management experience, and Dad did not, so the company may have chosen the most qualified candidate.
That is legal, right? To hire the most qualified candidate, even if the rejected candidate is also qualified?
Absolutely. Except for one thing.
After each decision, VP 1 allegedly told Dad that he didn't get the promotion because he had too many kids.
I'd say, "I kid you not," but that would be corny.
Then, according to Dad, about two years after the second rejection, VP 1 and "VP 2" told him at an awards dinner, "[C]ongratulations, great year, and something to the effect of this guy's got so many kids and he still pulled it off. He's not even Mormon." Another time, a Regional Manager allegedly said to him, "I heard you had a lot of kids. You must be crazy. You're Mormon," or, "Are you Mormon? You must be crazy."
About a year after the awards dinner, Dad got fired when a customer complained about him and in the course of investigating that complaint, VP 2 discovered that Dad had made a false sales call entry in the company platform.
(Here's what happened with that: Dad was scheduled to conduct training for a major customer, he cancelled on the morning of the training, the customer was very ticked, and Dad went over to the customer location that same day to try to meet with them. It sounds like this was an attempt to reschedule the training and maybe to placate the irate customer. The training was never conducted that day. But Dad's entry in the company sales platform indicated that he had conducted the training. Falsifying records doesn't sound very "devout," but Dad claimed that the platform gave him limited options, and that he didn't know how to indicate the purpose of the training-related meeting while making clear that the training had not actually taken place. However, the court pointed out that there were 14 other options in the platform, including "Meeting," and that there was also a "notes" field where Dad could have added a narrative explanation.)
Failure-to-promote claim will go to trial
Anyway, after his termination, Dad sued the company under several California laws. Some of his claims were for religious discrimination under the California Fair Employment and Housing Act, based on the two promotions that he didn't get, and the termination.
A federal judge in California granted the company's motion for summary judgment on most of the claims, except the ones related to the second promotion denial. (The statute of limitations had run out on the first promotion denial.)
As far as the denial of the second promotion was concerned, Judge Stanley Blumenfeld, Jr., a Trump appointee, noted that Dad's religious beliefs were sincerely held, even though tons of Catholics use artificial contraception. As we've discussed on this blog before, it is not unusual for members of a particular religion or denomination to have wide ranges of belief about behavior that is required or prohibited (for example, whether one has to go to services on Sunday or the Sabbath, or take the entire day off from work). The fact that some adherents of a faith are more "relaxed" doesn't mean the observant ones are not sincere in their beliefs.
In addition, Judge Blumenfeld said, VP 1 knew that Dad's family size was related to his religious beliefs, and -- more importantly -- VP 1 allegedly flat-out told Dad that he didn't get the second promotion because he had too many kids and because the company preferred "someone of a different culture." Even though the company had a decent argument that Dad wasn't the most qualified candidate for the position, the judge said that it would be up to the jury to decide whether Dad was rejected because he wasn't the best candidate (legal), or because of his religious beliefs (illegal).
It's not just California!
I know this all happened in California, but I can foresee a similar outcome under Title VII -- even in Texas, or Ohio, or North Carolina. So here are some lessons for all employers:
No. 1: Don't comment about an employee's family size, unless it's in a genuinely positive way. If you can't be genuinely positive, then don't say anything. If you think seven kids is too many and your employee has seven kids, then keep your opinion to yourself.
No. 2: The above applies whether your employee with the kids is a mom or a dad.
No. 3: Watch the teasing, especially if you've had a few. Some of the alleged "Mormon" comments were made at an awards dinner, and assuming the allegations are true, my guess is that the two VPs were three sheets to the wind and feeling zero pain. Also, they were sorta being complimentary to Dad. Dad was a top sales rep, and I'm sure the VPs had no idea that they'd be firing him within the year. "Anything you say can and will be used against you in a court of law," amirite? (Judge Blumenfeld said that these were just "stray remarks" that did not support Dad's claim for discriminatory termination. But I'm sure the VPs regret having (allegedly) made them anyway, and heaven forbid that any Mormon employees were there.)
No. 4: This one is more positive for employers. If you have reason to believe that an employee has committed serious misconduct, and if you conduct a reasonable investigation and then terminate, you will probably be fine -- even if the employee says you should have investigated more, or investigated differently, or even if the employee offers a legitimate-sounding explanation for what happened. The courts generally will not second-guess as long as you had a reasonable and honest belief that conduct warranting termination occurred.
Is Yours, Mine and Ours on TCM tonight? Or can I stream it?
