
The Huffington Post has an interesting blog post by Sherri Snelling about creating a corporate culture supportive of caregivers. Ms. Snelling talks about the the increasing number of workers with caregiver responsibilities, sometimes multiple ones for people with both children and an elderly parent or relative to care for. Ms. Snelling advocates for a change in corporate culture such that these needs are recognized and addressed. Whole heartedly support that goal. But until that happens - and it has in some places, at least for educated workers - sometimes the best you can do is talk to a lawyer that handles caregiver discrimination about your rights and, if necessary, assert them. Fine, let's not be coy. I mean threaten to sue them and carry that threat out if necessary.
What caught my eye, though, was that she uses Mad Men as an example of how the workplace was begining to change in the 60s and 70s - for instance, Joan becoming partner at her firm at a time when she is raising a child alone. Interesting point. But what this article made me think of was the vanishing archetype of Don Drapper. (I started to say vanishing Don Drapper, but then thought better of it. He is still out there - not so much in sense of the womanizing and drinking, though that still happens - but in the sense of the lone male breadwinner who has a wife at home to do all of the heavy lifting with house, kids, schools projects, etc. But those men - some women, but mostly men - are not rare. Many of the male partners that I know at law firms have a work-at-home wife.)
It is certainly more common in 2013 for men to both work and have real caregiver responsibilities. These men either by choice or necessisty, have to get home to get dinner on the table, go to science fair, and so on. These men are increasingly found in the ranks of red-meat corporate world like law firms. Sometimes this doesn't work out so well for them. That's what happened to Ariel Ayanna. Cutting to the chase, Ariel got fired. In 2010, Ariel sued his lawfirm employer in the federal district in Massachusetts federal court. The case is Ayanna vs. Dechert, LLP. The case number is 10-cv-12155. Lawyers suing lawyers. Got to be a good joke about that somewhere.
Here are the facts as described in court filings: Ariel was an associate in a big lawfirm from 2006 to 2008, when he was fired. When Ariel started, he had one child and a wife with a chronic mental illness. During his first year he performed well and received a bonus. The following year his wife became pregnant with their second child and her mental health deteriorated. She even tried to committ suicide. Ariel took Family Medical Leave to care for his wife. After their child was born, Ariel took four weeks paternity leave. When he wife's condition improved, Ariel returned to work, even though he had four weeks of FMLA leave remaining. Though he returned to work, he continued to have significant caregiver responsibilites at home for both his children and his wife. After Ariel returned from leave, the partner form whom Ariel performed most of his work began to monitor his work more closely than other associates. After Ariel's wife was hospitalized in September, 2008, the partner began assigning most of his work to other associates. Later in 2008 Ariel received a performance appraisal of "fair." In December 2008 the firm fired him.
Ariel first filed the the EEOC and state analog, Massachusetts Commission Against Discrimination. He later withdrew those claims and requested a right-to-sue letter. (For many discrimination claims, employees are first required to file with the EEOC. If the EEOC fails to resolve the matter with 180 days, which the agency rarely does, the employee can request a letter giving him permission to go to federal court.) Unfortunately, Ariel failed to file within the 90s days after receiving his letter as required under federal law and thus lost the right to bring some of his claims. ***Tip, don't let those 90 day slip. If you do, you are out of luck, no matter how strong your case. If you are having trouble finding a lawyer, go to the courthouse and file yourself - handwritten on notebook paper if you have to - this will stop that 90-day clock. You can then find a lawyer who can later re-file another complaint and serve the defendant. ***
His case went forward on claims of FMLA retaliation and sex discrimination under a Massachusett law, Chapter 151B. Ariel was lucky in that he had a state law to rely on. Most states, like Virginia do not have such laws. Fortunately for employees in D.C., the D.C. Human Rights Act offers similar protections. Ariel's FMLA theory was that the partner for whom he worked routed work away from Ariel and downgraded his performance only after he found out about Ariel's wife's condition and expected that Ariel would need leave. The court found that Ariel had produced enough evidence for this claim to go forward.
Ariel did not fare so well on his 151B claim. His theory there was that the firm fired him because he did not fit in with firm culture "which he assert[ed] is dominated by a traditional male 'macho' stereotype that promotes relegating family responsibilities to women." Interestingly, the court found that the firm could legally fire Ariel because he had caregiver responsibilities. Huh? Isn't that the point, a company cannot discriminate against someone just because they have a sick child and spouse with mental illness? Actually, that's exactly right. The only thing that is illegal - assuming we are not talking about denial of leave under the FMLA - is if a company treats men and women differently. Here the firm treated both men the same. That is, as the court noted, the firm fired both men and women who had caregiver responsibilities. Here's what the judge said:
At most the record suggests that Christian may have disfavored him because Ayanna prioritized his family over his employment responsibilities. While those facts suggest Ayanna may have been terminated because of the time he allotted to his caregiving
duties, Chapter 151B does not provide protection for employees
based on their caregiver status alone.
So, an employer is entitled to favor employees that priortize work over family. The employer just cannot make the decision based on gender. This case might have turned out differently if the firm had not fired women associates with caregiver responsibilities. Those facts would have supported the notion that the firm was making a decision based on gender sterotype - i.e., that women can take time off for caregiving, but men should not -- rather than simiply prefering those who prioritize work over family. Welcome, Don Drapper. You are our kind of man! Actually, we mean: Welcome Don Drapper and Peggy. You are our kind of people!
Post-script: note, however, that the firm would have run into trouble if denied FMLA leave to both men and women just because they had caregiver responsibilities. The FMLA expressely denies that kind of discrimination. See, I told you that you needed a lawyer.