Can My Employer Discriminate Against Me for Having a Family?

The short answer is no, at least not in the District of Columbia. The District of Columbia Human Rights Act (“DCHRA”) makes it unlawful to discriminate against employees on the basis of their “family responsibilities.” D.C. Code § 2-1402.11(a). The DCHRA defines “family responsibilities” as “the state of being, or the potential to become, a contributor to the support of a person or persons in a dependent relationship, irrespective of their number, including the state of being the subject of an order of withholding or similar proceedings for the purpose of paying child support or a debt related to child support.” D.C. Code § 2-1401.02(12).

Under the DCHRA, it is an “unlawful discriminatory practice” for an employer to do any of the following because of the employee’s membership in a protected class (such as by having “family responsibilities”): (1) to “fail or refuse to hire, or to discharge, any individual;” (2) to otherwise “discriminate against any individual, with respect to his or her[ ] compensation, terms, conditions, or privileges of employment, including promotion;” or (3) “to limit, segregate, or classify … employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his or her[ ] status as an employee.” D.C. Code § 2-1402.11(a)(1)(A).

While the same “family responsibilities” protections are not found under federal anti-discrimination laws, the Americans with Disabilities Act (“ADA”) does make it illegal for an employer to discriminate against an employee based on that employee’s association with—including the employee’s caregiving responsibilities for—a family member with a “disability,” as defined under the ADA. 42 U.S.C. § 12112(b)(4).

Additionally, the Employee Retirement Income Security Act (“ERISA”) may provide an avenue for recourse if an employer fires an employee to avoid the medical insurance costs associated with a medical condition that the employee’s child/dependent has. 29 U.S.C. § 1140.

“Family responsibilities” discrimination is distinct from sex discrimination and pregnancy discrimination. However, these forms of discrimination are all related, in part, and the relevant statutes may provide an aggrieved employee with multiple different types of legal claims, depending on the facts at issue.

In particular, both District of Columbia law and federal law expressly prohibit discrimination on the basis of sex and pregnancy. The DCHRA includes “sex” within its protected classes, and defines “sex” to include “pregnancy, childbirth, related medical conditions, breastfeeding, or reproductive health decisions.” D.C. Code § 2-1401.05(a).

The DCHRA further makes clear that employers must: “treat an employee affected by pregnancy, childbirth, a pregnancy-related or childbirth-related medical condition, breastfeeding, or a reproductive health decision, the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as an employee not so affected but similar in the employee’s ability or inability to work, including the requirement that an employer shall treat an employee temporarily unable to perform the functions of the employee’s job because of the employee’s pregnancy-related condition in the same manner as it treats other employees with temporary disabilities…” D.C. Code § 2-1402.11(a)(B) (emphasis added).

At the federal level, Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of sex, and the Pregnancy Discrimination Act of 1978 (“PDA”), which amended Title VII, prohibits discrimination on the basis of pregnancy. 42 U.S.C. §§ 2000e et seq.

Thus, an employee who becomes pregnant while working and then, after childbirth, continues to have family responsibilities may experience discrimination on the basis of two or three separate protected classes—(1) pregnancy; (2) sex; and/or (3) family responsibilities.

But unlike pregnancy discrimination claims, claims for discrimination on the basis of family responsibilities can be brought by employees of all genders. The crux of the question is whether an employer is treating an employee with family responsibilities differently (or “disparately”) than his/her/their colleagues without family responsibilities. For example, perhaps an employer criticizes an employee for using leave time to care for a child or family member, but does not criticize the employee’s peers for using leave time for other, non-family related reasons. Even worse, perhaps the employer includes that discriminatory criticism in a negative performance evaluation, and then later cites that negative evaluation as justification for firing the employee who took time off to care for family. Under this scenario, the terminated employee could likely assert a legal claim for discrimination under the DCHRA.

Or, in the context of sex discrimination, perhaps the employer is only willing to grant leave to a woman who has childcare responsibilities, but is not willing to similarly accommodate a man with childcare responsibilities, based on the employer’s stereotyped beliefs that a man’s caregiving responsibilities are less substantial or time-consuming than those of a woman. That type of disparate treatment in the granting or denial of leave would likely constitute illegal sex discrimination under both the DCHRA and Title VII.

Stereotypes, and decisions made by employers based on stereotyped beliefs, are common issues in the context of sex, pregnancy, and family responsibilities discrimination.

The U.S. Supreme Court has expressly held that an employer can violate Title VII by engaging in sex stereotyping. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”).

As noted in the examples above, stereotypes can impact employees of all genders. However, in our country, and most others, women have traditionally been viewed as the primary caregivers. Although these gender norms are (very) slowly evolving, women continue to be viewed as more responsible for, and more involved in, raising their children than men—even though that perceived dynamic is not the reality for many families.

Thus, employers may stereotype women with children as less reliable or less committed to their jobs than their male peers (even male peers who also have kids) and may wrongly assume that women with children devote less hours to their jobs due to their caregiving responsibilities. Some employers may draw upon those stereotypes, illegally, when making decisions about employee retention or promotions.

For example, an employer may decide to promote a man who has children instead of a woman who has children, even when the woman was as or more qualified for the promotion, based on the employer’s stereotyped beliefs that the man will be more dedicated to the job because, in the employer’s mind, the man is not the primary caregiver.

Or perhaps an employer is implementing a reduction-in-force (a “RIF”) and chooses to lay off a disproportionately high number of women with children, but retains a much higher percentage of women without children, based on the employer’s stereotyped beliefs that the childless women will be more devoted to their jobs.

As another example, an employer may choose not to give women with children important work assignments that involve travel, based on the employer’s stereotyped beliefs that women belong at home with their kids. As a result, the women with children get fewer opportunities to work on significant assignments and to make professional connections on business trips, and thus are at a disadvantage when it comes time for the employer to make promotion decisions.

You get the idea. All three of those examples involve stereotypes on the basis of sex and/or family responsibilities and may violate federal and District of Columbia law.

In addition to the District of Columbia, other states provide various types of protections for parents and caregivers, although those state laws are beyond the scope of this blog post.

The bottom line is that employees should not be treated differently than their co-workers because of their caregiving responsibilities. But if that type of disparate treatment is happening to you, there may be avenues for recourse under District of Columbia, federal, or other state or local laws. We can help you understand your rights under those statutes, and we can take legal action on your behalf if your rights are being violated.

Submit a request for a legal consultation to speak with us about your employment issue involving family responsibilities.

For more information on these subjects, see:

1. “Questions and Answers about EEOC’s Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”
2. “EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues”
3. “Sex-Based Discrimination”

Additionally, if you are interested in learning about the types of protected leave to which parents and caregivers are entitled, please see our related blog post, “Am I Entitled to Maternity Leave or Parental Leave?”

This blog post has been prepared for informational purposes only. This blog post is not intended, and should not be construed, as legal advice. The information contained in this blog post is not intended to create an attorney-client relationship, and the receipt of this information does not constitute attorney-client privileged legal advice.