WorkLife Law Blog

I have been traveling relentlessly; six speeches in the twelve days. Here's one story I heard:

A Gen-X lawyer told me he was working with a new client, who expressed impatience with younger workers who wanted to telecommute. The lawyer held his peace, but months later, when he got to know the client better, he confessed that, the day the client made that comment, he was telecommuting -- at home with a sick child. "Did that affect the advice I gave you?," he asked. The client acknowledged it hadn't; by that time, his attitudes had changed a lot.

Young men are changing the workplace, little by little.

Over the weekend, California Governor Arnold Schwarzenegger vetoed SB 836 (Kuehl), a state bill that would have prohibited employment discrimination based on a worker’s “familial status,” including some family caregiving responsibilities.

SB 836 was an anti-discrimination measure and not a preference statute. It did not grant family caregivers any additional entitlements. Rather, the bill was designed to clarify and fill in gaps in the law, so that California workers could not be singled out and treated worse at work based on their family caregiving responsibilities. Consider the case of California firefighter, Derek Tisinger, a single father, was passed over for a promotion for using his employer’s shift trading policy to trade shifts to allow him to care for his three sons. Other workers who traded shifts for non-family reasons were not penalized. When Tisinger sued, the court held that, even though he was treated worse because of his family responsibilities, that treatment wasn’t illegal under state law. (See Tisinger v. City of Bakersfield, 2002 WL 275525 (Cal. Ct. App., 2002).)

As WLL documented in its 2006 report, Litigating the Maternal Wall, some employees are already suing their employers—and winning—for family responsibilities discrimination under a wide array of legal theories, often taking their employers by surprise. SB 836 would have provided employers with some much needed guidance and, if nothing else, a “heads up” about the potential liability that may exist in their workplaces.

From time to time, we come across noteworthy new FRD cases we like to pass along. Here's one that raises several interesting issues (and probably some eyebrows, too):

Children’s Hospital in Boston, a major teaching hospital of Harvard Medical School, apparently does not want plastic surgeons who are mothers. It tried to make the first and only female plastic surgeon ever hired by the hospital quit, and when she wouldn’t, she was fired, according to a discrimination charge filed last week.

Highlights: The female plastic surgeon is a mother who worked part-time. The new Chief of Plastic Surgery informed her that he was eliminating “all” part-time surgeons to create a “world class” surgery department, although the mother was the only part-time plastic surgeon. The Chief’s reference to “all” referred to the mother and to two men with full-time private practices who used Children’s facilities on a part-time basis but who were not Children’s employees as the mother was.

The Chief offered the two male plastic surgeons full-time positions with Children’s, enticing them with financial incentives. The plastic surgeon/mother, on the other hand, says she was rebuffed when she offered to become a full-time surgeon in order to retain her position. In addition, she says, the hospital harassed her in an attempt to force her from the plastic surgery department and to shut down her practice by taking away her patients, removing her voicemail and directory information so she couldn’t be contacted, interfering with her billing for office visits, and making disparaging comments about her.

The Chief of Plastic Surgery defines a “full-time” surgeon as one who puts in face time of least sixty hours per week. His own wife is a doctor who stays home full-time with their children, WLL has learned.

The plastic surgeon/mother was replaced by a less qualified male who is now operating part-time because he has a research position on the side -- which was one of the proposals the plastic surgeon/mother had made to the department for herself that was rejected.

The allegations get worse: when the plastic surgeon/mother did not resign, the hospital and the department threatened to retaliate against her for stating that she was being treated unfairly because of her gender and status as a mother. They then carried out these threats by summarily terminating her from her job, taking away her scheduled operating and clinic time, and withholding revenues that she had already earned.

We'll be keeping a close eye on this one.