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THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
November 11, 1999
STATEMENT BY THE PRESIDENT
I am pleased that last night Senators Dodd and Kennedy introduced the "Ending
Discrimination Against Parents Act of 1999." This landmark bill protects America's working
parents from unfair treatment on the job. It builds on our nation's longstanding commitment to
equal opportunity. And it sends a clear message that parents striving to meet their
responsibilities both at home and at the office should never be considered second-class workers.
This bill would, for the first time, protect parents and those with parental responsibilities
against job discrimination. It does not stop employers from making hiring and promotion
decisions on the basis of qualifications or job performance, but it does ensure that workers are
not discriminated against simply because they are parents or exercise parental responsibilities. It
would, for example, bar employers from taking a parent off the "fast track" because of
unsubstantiated concerns that parents cannot perform in demanding jobs. Similarly, it would not
allow employers to prefer applicants without children over equally or better qualified working
parents, or to refuse to hire single parents.
As more mothers enter the workforce, and as more families rely on the earnings of single
parents, these protections are increasingly important. We cannot afford to let working parents be
held captive to baseless assumptions about their ability to work.
Already, a number of states have enacted common-sense laws that prohibit or pave the
way to prohibiting discrimination on the basis of parental or familial status. I urge Congress to
safeguard the interests of America's working families and give this legislation prompt and
favorable consideration. Our workplaces should work for all Americans.
###
MENES conts
DRAFT
STATEMENT BY THE PRESIDENT
ON "ENDING DISCRIMINATION AGAINST PARENTS ACT OF 1999
I am pleased that Senator Dodd today introduced the "Ending Discrimination Against
Parents Act of 1999." This landmark bill protects America's working parents from unfair
treatment on the job. It builds on our nation's longstanding commitment to equal opportunity.
And it sends a clear message that parents striving to meet their responsibilities both at home and
at the office should never be considered second-class workers.
This bill would, for the first time, protect parents and those with parental responsibilities
against job discrimination. It does not bar employers from making hiring and promotion
decisions on the basis of job performance, but it does ensure that workers are not discriminated
against simply because they are parents or exercise parental responsibilities. It would, for
example, prohibit employers from taking a parent off the "fast track" because of unsubstantiated
concerns that parents cannot perform in demanding jobs. Similarly, it would not allow
employers to prefer applicants without children over equally or better qualified working parents,
or to refuse to hire single parents.
As more mothers enter the workforce, and as more families rely on the earnings of single
parents, these protections are increasingly important. We simply cannot afford to let so many
working parents be held captive to unfounded assumptions about their capacity to work.
Already, a number of states have enacted common-sense laws that prohibit or pave the
way to prohibiting discrimination on the basis of parental or familial status. I urge Congress to
safeguard the interests of America's working families and give this legislation prompt and
favorable consideration. Our workplaces should work for all Americans.
Ending Discrimination Against Parents Act of 1999
Contact List
Suzanne Day, Senator Dodd's office
Ph: 224-0207
Email: [email protected]
Jocelyn Samuels, EEOC
Ph: 663-4624
Email: [email protected]
Ellen Vargyas, EEOC
Ph: 663-4637
Eddie Correia, WH Counsel's Office
Ph: 456-2024
Melinda Haskins, OMB Leg Reference
Ph: 395-3923
Helen Norton, DOJ
Ph: 353-0742
DRAFT
STATEMENT BY THE PRESIDENT
ON "ENDING DISCRIMINATION AGAINST PARENTS ACT OF 1999
I am very pleased that today Senator Dodd has introduced the "Ending Discrimination
Against Parents Act of 1999." This legislative proposal would prohibit employment
discrimination against parents and those with parental responsibilities. It builds on our Nation's
longstanding commitment to equal opportunity, following in the footsteps of anti-discrimination
laws like title VII of the Civil Rights Act of 1964, which prohibits job bias on the bases of race,
color, sex, national origin, and religion, and the Pregnancy Discrimination Act of 1978, which
bars employment discrimination against pregnant women.
This bill would, for the first time, include protect parents and those with parental
responsibilities as a class against job discrimination. While the bill would not prohibit
employers from making hiring and promotion decisions on the basis of job performance, it would
ensure that workers are not discriminated against simply because they are parents or exercise
parental responsibilities. It would, for example, prohibit employers from taking a parent off the
"fast track" due to unsubstantiated concerns that parents cannot meet the requirements of
demanding jobs. Similarly, it would bar employers from preferring applicants without children
over equally or better qualified working parents, or from refusing to hire single parents. It would
cover discrimination in hiring, promotions, and firing, as well as in pay and other conditions of
employment.
Such protections are increasingly important as more and more mothers join fathers in
participating in the workforce and contributing to their families' economic security - and as more
and more families rely on the earnings of single parents, both male and female. As a Nation, we
cannot afford to lose the talents and labor of these working parents due to unfounded
assumptions about their capacity to work. Parents who are dedicated to meeting their
responsibilities both at home and at work should be valued and celebrated, not targeted for
discrimination.
In recognition of the gravity of this issue, numerous states (including Alaska, Nebraska,
New Hampshire, New Jersey, and South Dakota) and the District of Columbia have enacted laws
prohibiting, or authorizing the prohibition of, discrimination on the basis of parental or familial
status.
I urge the Congress to give this legislation prompt and favorable consideration.
TO THE CONGRESS OF THE UNITED STATES:
I am pleased to transmit today for immediate consideration and prompt enactment the
"Ending Discrimination Against Parents Act of 1999." This legislative proposal would prohibit
employment discrimination against parents and those with parental responsibilities. Also
transmitted is a section-by-section analysis.
My proposal builds on our Nation's longstanding commitment to equal opportunity. It
follows in the footsteps of anti-discrimination laws like title VII of the Civil Rights Act of 1964,
which prohibits job bias on the bases of race, color, sex, national origin, and religion, and the
Pregnancy Discrimination Act of 1978, which bars employment discrimination against pregnant
women.
This bill would, for the first time, include parents and those with parental responsibilities
as a protected class with respect to job discrimination. While the bill would not prohibit
employers from making hiring and promotion decisions on the basis of job performance, it would
ensure that workers are not discriminated against simply because they are parents or exercise
parental responsibilities. It would, for example, prohibit employers from taking a parent off the
"fast track" due to unsubstantiated concerns that parents cannot meet the requirements of
demanding jobs. Similarly, it would bar employers from preferring applicants without children
over equally or better qualified working parents, or from refusing to hire single parents. It would
cover discrimination in hiring, promotions, and firing, as well as in pay and other conditions of
employment.
Such protections are increasingly important as more and more mothers join fathers in
participating in the workforce and contributing to their families' economic security - and as more
and more families rely on the earnings of single parents, both male and female. Indeed, a 1998
survey revealed that 38 percent of all American workers are parents with children under age 18.
Nearly one in five working parents is unmarried; a fifth of these are single dads. As a Nation, we
cannot afford to lose the talents and labor of these working parents due to unfounded
assumptions about their capacity to work. Parents who are dedicated to meeting their
responsibilities both at home and at work should be valued and celebrated, rather than targeted
for discrimination.
In recognition of this problem, numerous states (including Alaska, Nebraska, New
Hampshire, New Jersey, and South Dakota) and the District of Columbia have enacted laws
prohibiting, or authorizing the prohibition of, discrimination on the basis of parental or familial
status.
I urge the Congress to give this legislation prompt and favorable consideration.
WILLIAM J. CLINTON
THE WHITE HOUSE
October 18, 1999
DRAFT
October 21, 1999
Questions and Answers on the "Ending Discrimination Against Parents Act of 1999"
Q.
What employers and employees are covered by this bill?
A.
The bill covers private sector and state and local government employers with 15 or more
employees; executive branch agencies, including the Executive Office of the President;
and the House of Representatives, the Senate, and other offices (such as the
Congressional Budget Office, the Capitol Police, and the Office of the Architect of the
Capitol) that are part of the legislative branch. The bill covers all employees, former
employees, and applicants of these employers.
Q.
Are any other entities covered under the bill?
A.
The bill also applies to employment agencies, labor organizations, and joint labor-
management committees, as those entities are defined in Title VII of the Civil Rights Act
of 1964. The bill specifically excludes bona fide private membership clubs that are
exempt from taxation under the Internal Revenue Code.
Q.
What does it mean to be a "parent" under this bill?
A.
The bill contains a multi-faceted definition of "parent." It includes people who are
parents of children under 18, whether those people are biological, adoptive, foster, or
step-parents. It includes the parents of people who are 18 or over but who cannot take
care of themselves because of a mental or physical disability. It includes those who are
actively seeking legal custody or adoption of someone who is under 18 or over 18 but
unable to care for himself. Finally, it includes those who stand "in loco parentis" to such
individuals.
Q.
What does it mean to be "actively seeking legal custody?" If I am beginning to explore
the possibility of adopting a child from overseas, am I covered by this bill?
A.
People who are actively seeking custody or adoption are those whose custody or adoption
of a child reasonably seems to be imminent. A person "beginning to explore the
possibility" of adoption would be unlikely to be covered by the bill. The language is
intended to provide protection that is comparable to that provided under the Pregnancy
Discrimination Act for biological mothers awaiting the birth of a child - that is, to bar
discrimination during the period immediately before adoption or custody arrangements
are finalized.
1
Q.
What does "in loco parentis" mean?
A.
People who are "in loco parentis" include those with day-to-day responsibilities to care
for and financially support a child. Note that both conditions must be met. The bill does
not cover a person who simply provides daily childcare to a family. Nor does this
language cover people who provide financial assistance for a child but have no caretaking
responsibilities. Such people will, of course, be covered if they have parental status
under one of the other prongs of the definition.
Q.
What does it mean to be "incapable of self-care"?
A.
"Incapable of self-care" is defined to mean situations in which a person needs help to
provide self-care in three or more "activities of daily living" or "instrumental activities of
daily living." The definition of these activities is taken from the regulations
implementing the Family and Medical Leave Act, and includes grooming, bathing,
dressing, eating, maintaining a home, using telephones, cooking, and taking public
transportation.
Q.
What is the relationship between the bill and Title VII of the Civil Rights Act of 1964?
How are the two the same and how are they different?
A.
The bill is a separate law and does not amend Title VII. Indeed, the bill is not intended to
affect interpretation of Title VII or limit rights or remedies that people can claim under
that law or other civil rights laws.
The prohibitions of the bill have, however, been modeled on Title VII. Thus, the section
that prohibits discrimination by employers, employment agencies, and labor
organizations (Section 5) tracks Title VII language, as does the section addressing mixed
motive discrimination (Section 8). The defenses available where action has been taken in
a foreign country also mirror those available under Title VII. Similarly, the EEOC is
given the same authority by the bill that it has to enforce Title VII.
There are some significant differences between the bill and Title VII. First, the bill
explicitly states that -- unlike under Title VII -- a disparate impact cause of action will not
be available. Second, the bill bars the EEOC from collecting statistics on employment of
parents, unless those statistics are necessary for investigation, litigation, or resolution of a
specific claim of discrimination. Finally, the remedies applicable under the bill differ in
some respects from those available under Title VII. For example, the bill imposes no
caps on compensatory or punitive damages for which a covered entity may be liable. On
the other hand, the bill does restrict the financial liability of state governments.
2
Q.
Why does the bill provide for uncapped damages? Doesn't this mean that people could
get vastly more money under this law than they could if they are the victims of sex
discrimination? Why should that be authorized?
A.
The Administration believes that the limits on the damages that are available under Title
VII are unwarranted, and has consistently supported legislation that would remove those
caps and allow victims of sex discrimination to get the full amount of damages to which
they are entitled. [Is legislation pending now?] It is the Administration's hope,
therefore, that damages available for discrimination against parents will ultimately be
commensurate with those available for discrimination on the basis of sex, and that both
will be uncapped.
Q.
Why are damages unavailable against state governments?
A.
Under current case law, federal laws must meet specific requirements before they can
provide for damage awards against state governments. Rather than becoming entangled
in legal questions about whether the bill does or does not meet these requirements, the
bill provides that absent its consent, a State may be sued for monetary relief only by the
Attorney General. Individuals may seek declaratory and injunctive relief against State
officials.
Q.
Would this bill prevent an employer from allowing parents to leave early to coach their
kids' soccer teams?
A.
This bill prohibits employers only from treating parents unfavorably. Nothing in the bill
would prevent employers from making accommodations -- such as flexible work
schedules -- for parents if they choose to do so.
Q.
Would this bill prevent an employer from firing an employee who is consistently late if
the reason for the employee's lateness is his childcare responsibilities?
A.
No. The bill does not interfere with an employer's discretion to make decisions based on
an employee's job performance or ability to meet job requirements or qualification
standards. Thus, an employer may discipline an employee who fails to meet the
employer's time or attendance standards regardless of the reason the employee is late or
absent. Similarly, an employer may reject, for a job that requires extensive travel, an
applicant who says he is unwilling to travel because of his parental responsibilities. What
the bill would prohibit is rejection of an applicant who is willing to travel based simply
on the assumption that he, as a parent, will be unable to fulfill that commitment.
Q.
Would this bill authorize lawsuits based simply on an employer's failure to hire a
sufficient number of parents?
3
A.
No. First, proving a violation of this law requires a showing of intent to discriminate.
Disparate impact lawsuits are not authorized. Absent evidence that it reflects an intent to
discriminate, therefore, the mere fact that an employer has few parents in its work force
will not make out a violation of the law.
In addition, employers are not allowed to implement quotas with regard to their
employment of parents. Far from being sued for having too few parents in their work
forces, employers are affirmatively barred from hiring "by the numbers."
Q.
Why is this bill necessary? Is there any evidence that discrimination against parents is a
problem in the real world?
A.
There is limited evidence of the extent to which employers discriminate against parents in
the workforce - but that likely results, in large part, from the fact that there has been no
basis in the law to date on which parents could challenge such discrimination.
Congressional hearings will no doubt develop a factual record on this point.
But this is not to say that there is not a real problem. Indeed, the scope of this type of
discrimination has been recognized in numerous states (including Alaska, Nebraska, New
Hampshire, New Jersey, and South Dakota), plus the District of Columbia, which
prohibit, or authorize prohibition of, discrimination based on parental or familial status.
In addition, statistics show the substantial population that will benefit from this
protection. In 1998, for example, 38 percent of all U.S. workers had children under the
age of 18; additionally, the vast majority of Americans with children under 18 -- some 82
percent -- were employed. Nearly one in five working parents is unmarried, moreover; a
fifth of these are single dads. To ensure that these working parents are not subject to this
type of unfair conduct, we need to enact legislation now.
4
A BILL
To prohibit employment discrimination against parents and those with parental
responsibilities, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled,
SECTION 1. SHORT TITLE. - This Act may be cited as the "Ending Discrimination Against
Parents Act of 1999."
SECTION 2. FINDINGS.
(a) In 1998, thirty-eight percent of all United States workers had children under 18.
(b) The vast majority of Americans with children under 18 are employed.
(c) Federal law protects working parents from employment discrimination in a number of
important areas. For instance, title VII of the Civil Rights Act of 1964 prohibits discrimination
against workers on the basis of sex; the Americans with Disabilities Act of 1990 prohibits
discrimination against workers on the basis of disability; and the Pregnancy Discrimination Act
of 1978 prohibits discrimination against workers on the basis of pregnancy. Also, the Family
and Medical Leave Act of 1993 provides covered workers with job protection when they take
time off for certain family responsibilities.
(d) However, no existing Federal statute protects all workers from employment
discrimination on the basis of their status as parents.
(e) Such discrimination against parents occurs where, for example, employers refuse to
hire or promote both men and women who are parents based on unwarranted stereotypes or
overbroad assumptions about their level of commitment to the work force.
(f) Such discrimination has occurred in the workplace and has been largely unremedied.
(g) Such discrimination occurs in both the private and the public sectors.
(h) Such discrimination -
1
(1) reduces the income earned by families who rely on the wages of working
parents to make ends meet;
(2) prevents the best use of available labor resources;
(3) has been spread and perpetuated, through commerce and the channels and
instrumentalities of commerce, among the workers of several States;
(4) burdens commerce and the free flow of goods in commerce;
(5) constitutes an unfair method of competition in commerce; and
(6) leads to labor disputes burdening and obstructing commerce and the free flow
of goods in commerce.
(i) Elimination of such discrimination would have positive effects, including -
(1) solving problems in the economy created by unfair discrimination against
parents;
(2) promoting stable families by enabling working parents to work free from
discrimination against parents; and
(3) remedying the effects of past discrimination against parents.
SECTION 3. PURPOSES.
The purposes of this Act are -
(a) to prohibit employers, employment agencies, and labor organizations from
discriminating against parents and persons with parental responsibilities based on the assumption
that they cannot satisfy the requirements of a particular position; and
(b) to provide meaningful and effective remedies for employment discrimination against
parents and persons with parental responsibilities.
SECTION 4. DEFINITIONS.
In this Act:
(a) "Commission" means the Equal Employment Opportunity Commission.
(b) "Complaining party" means the Commission, the Attorney General, or any other
person who may bring an action or proceeding under this Act.
2
(c) "Covered entity" means an employer, employment agency, labor organization, or joint
labor-management committee.
(d) "Demonstrates" means meets the burdens of production and persuasion.
(e)
(1) The term "employee" means:
(i) an individual to whom section 701(f) of the Civil Rights Act of 1964
(42 U.S.C. 2000e(f)) applies;
(ii) an individual to whom section 717(a) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-16(a)) applies;
(iii) an individual to whom section 302(a)(1) of the Government Employee
Rights Act of 1991 (2 U.S.C. 1202(a)(1)) applies;
(iv) a covered employee as defined in section 101(3) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301(3)); and
(v) a covered employee as defined in section 411(c)(1) of title 3, United
States Code.
(2) The term "employee" includes applicants for employment and former
employees.
(f)
(1) The term "employer" means:
(i) a person engaged in an industry affecting commerce (as defined in
section 701(h) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(h))) who has
fifteen or more employees (as defined in section 701(f) of such Act (42 U.S.C.
2000e(f))) for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year, and any agent of such a person;
(ii) an entity to which section 717(a) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16(a)) applies;
(iii) an employing authority to which section 302(a)(1) of the Government
Employee Rights Act of 1991 (2 U.S.C. 1202(a)(1)) applies;
(iv) an employing office, as defined in section 101(9) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301(9)); and
3
(v) an employing office as defined in section 411(c)(2) of title 3, United
States Code.
(2) The term "employer" does not include a bona fide private membership club
(other than a labor organization) that is exempt from taxation under section 501 (c)
of title 26, United States Code.
(g) "Employment agency" has the meaning given that term in section 701(c) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e(c)).
(h) "Incapable of self-care" means that the individual needs active assistance or
supervision to provide daily self-care in three or more of the "activities of daily living" or
"instrumental activities of daily living." Activities of daily living include adaptive activities such
as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating.
Instrumental activities of daily living include cooking, cleaning, shopping, taking public
transportation, paying bills, maintaining a residence, using telephones and directories, using a
post office, and similar activities.
(i) "Labor organization" has the meaning given that term in sections 701(d) and (e) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e(d), (e)).
(j) "Office of Compliance" has the meaning given that term in the Congressional
Accountability Act of 1995 (2 U.S.C. 1301 et seq.).
(k) "Parent" means a person who, with regard to an individual who is under the age of 18,
or who is 18 or older but is incapable of self-care because of a physical or mental disability -
(1) has the status of -
(i) a biological parent;
(ii) an adoptive parent;
(iii) a foster parent;
(iv) a stepparent; or
(v) a custodian of a legal ward;
(2) is actively seeking legal custody or adoption; or
(3) stands in loco parentis to such an individual.
4
(1) "Person" has the meaning given that term in section 701(a) of the Civil Rights Act of
1964 (42 U.S.C. 2000e(a)).
(m) "Physical or mental disability" means a physical or mental impairment that
substantially limits one or more of the major life activities of an individual.
(n) "State" has the meaning given that term in section 701(i) of the Civil Rights Act of
1964 (42 U.S.C. 2000e(i)).
SECTION 5. DISCRIMINATION PROHIBITED.
(a) Employer Practices. - It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire, or to discharge, any individual, or otherwise to
discriminate against any individual with regard to the compensation, terms, conditions, or
privileges of employment of the individual, because such individual is a parent; or
(2) to limit, segregate, or classify employees in any way that would deprive, or
tend to deprive, any individual of employment opportunities or otherwise adversely affect
the status of the individual as an employee, because such individual is a parent.
(b) Employment Agency Practices. - It shall be an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or otherwise to discriminate
against, any individual because such individual is a parent or to classify or refer for employment
any individual because such individual is a parent.
(c) Labor Organization Practices. - It shall be an unlawful employment practice for a
labor organization -
(1) to exclude or expel from its membership, or otherwise to discriminate against,
any individual because such individual is a parent;
(2) to limit, segregate, or classify its membership or applicants for membership, or
to classify or fail or refuse to refer for employment any individual, in any way that would
deprive or tend to deprive any individual of employment opportunities, or would limit
such employment opportunities or otherwise adversely affect the status of the individual
as an employee, because such individual is a parent; or
5
(3) to cause or attempt to cause an employer to discriminate against an individual
in violation of this Act.
(d) Training Programs. - It shall be an unlawful employment practice for any employer,
labor organization, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, to discriminate against any
individual because such individual is a parent in admission to, or employment in, any program
established to provide apprenticeship or other training.
SECTION 6. RETALIATION AND COERCION PROHIBITED.
(a) Retaliation. - A covered entity shall not discriminate against an employee because
the employee has opposed any act or practice prohibited by this Act or because the employee
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this Act.
(b) Interference, Coercion, or Intimidation. - A covered entity shall not coerce,
intimidate, threaten, or interfere with any employee in the exercise or enjoyment of, or on
account of the employee's having exercised or enjoyed, or on account of the employee's having
aided or encouraged any other individual in the exercise or enjoyment of, any right granted or
protected by this Act.
SECTION 7. OTHER PROHIBITIONS.
(a) Collection of Statistics. - Notwithstanding any other provision of this Act, the
Commission shall not collect statistics from covered entities on their employment of parents, or
compel the collection of such statistics by covered entities, unless such statistics are to be used in
investigation, litigation, or resolution of a claim of discrimination under this Act.
(b) Quotas. - A covered entity shall not adopt or implement a quota with respect to its
employment of parents.
6
SECTION 8. MIXED MOTIVE DISCRIMINATION.
(a) An unlawful employment practice is established under this Act when the complaining
party demonstrates that -
(1) an individual's status as a parent; or
(2) retaliation, coercion, or threats against, intimidation of, or interference with an
individual as described in section 6 of this Act
was a motivating factor for any employment practice, even though other factors also motivated
the practice.
(b) When an individual proves a violation under this section, and a respondent
demonstrates that the respondent would have taken the same action in the absence of the
prohibited motivating factor, a court or any other entity authorized in section 11(a) of this Act to
award relief -
(1) may grant declaratory relief, injunctive relief (except as provided in clause (2)
below), and attorney's fees and costs demonstrated to be directly attributable only to the
pursuit of a claim under this section; and
(2) shall not award damages or issue an order requiring any admission,
reinstatement, hiring, promotion, or payment.
SECTION 9. DISPARATE IMPACT. - Notwithstanding any other provision of this Act, the
fact that an employment practice has a disparate impact on parents, as the term "disparate
impact" is used in section 703(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(k)), shall
not establish a violation of this Act.
SECTION 10. DEFENSES WHERE ACTIONS TAKEN IN A FOREIGN COUNTRY.
(a) It shall not be unlawful under this Act for a covered entity to take any action
otherwise prohibited under this Act with respect to an employee in a workplace in a foreign
country if compliance with this Act would cause such entity to violate the law of the foreign
country in which such workplace is located.
7
(b)
(1) If a covered entity controls a corporation whose place of incorporation is a
foreign country, any practice prohibited by this Act engaged in by such corporation shall
be presumed to be engaged in by such covered entity.
(2) This Act shall not apply with respect to the foreign operations of a corporation
that is a foreign person not controlled by an American covered entity.
(3) For purposes of this subsection, the determination of whether a covered entity
controls a corporation shall be based on the factors set forth in section 702(c)(3) of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-1(c)(3)).
(c) This Act shall not apply to a covered entity with respect to the employment of aliens
outside any State.
SECTION 11. ENFORCEMENT AND REMEDIES.
(a) Incorporation of Powers, Remedies, and Procedures in Other Civil Rights
Statutes. - With respect to the administration and enforcement of this Act in the case of a claim
alleged by an individual for a violation of this Act, the following statutory provisions are hereby
incorporated, and shall, along with the provisions in subsection 11(b), establish the powers,
remedies, procedures, and jurisdiction that this Act provides to the Equal Employment
Opportunity Commission, the Attorney General, the Librarian of Congress, the Office of
Compliance and its Board of Directors, the Merit Systems Protection Board, the President, the
courts of the United States, and/or any other person alleging a violation of any provision of this
Act -
(1) for individuals who are covered under title VII of the Civil Rights Act of
1964, as amended (42 U.S.C. 2000e et seq.), sections 705, 706, 707, 709, 710, 711, and
717 of that Act (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9, 2000e-10, and
2000e-16), and sections 7121, 7701, 7702, and 7703 of title 5, United States Code, as
applicable;
(2) for individuals who are covered under section 302(a) of the Government
Employee Rights Act of 1991 (2 U.S.C. 1202(a)), sections 302(b)(1) and 304(b)-(e) of
that Act (2 U.S.C. 1202(b)(1), 1220(b)-(e));
8
(3) for individuals who are covered under section 101(3) of the Congressional
Accountability Act of 1995 (2 U.S.C. 1301(3)), sections 201(b)(1), 225, and 401-416 of
that Act (2 U.S.C. 1311(b)(1), 1361, 1401-1416); and
(4) for individuals who are covered under section 411(c)(1) of title 3, United
States Code, sections 411(b)(1), 435, and 451-456 of that title.
(b) Additional Remedies. -
(1) Notwithstanding any express or implied limitation on the remedies
incorporated by reference in subsection 11(a), and except as provided in subsection (b)(2)
of this section, section 8, or section 12 of this Act, any covered entity that violates this
Act shall be liable for such compensatory damages as may be appropriate and for punitive
damages if the covered entity engaged in a discriminatory practice or practices with
malice or with reckless indifference to the federally protected rights of an aggrieved
individual.
(2) Notwithstanding subsection 11(b)(1),
(i) absent its consent to a monetary remedy, a State may be liable for
monetary relief only in an action brought by the Attorney General in a court of the
United States; and
(ii) a State shall not be liable for punitive damages.
(3) Notwithstanding any express or implied limitation on the remedies
incorporated by reference in subsection 11(a) or included in subsection 11(b)(2) above,
(i) an individual may bring an action in a district court of the United States
for declaratory or injunctive relief against any appropriate State official for a
violation of this Act; and
(ii) the Attorney General may bring an action in a district court of the
United States for declaratory or injunctive relief against any appropriate State
official or State for a violation of this Act.
SECTION 12. FEDERAL IMMUNITY. - Notwithstanding any other provision of this Act, in
an action or administrative proceeding against the United States for a violation of this Act,
9
remedies (including remedies at law and in equity, and interest) are available for a violation to
the same extent as the remedies are available against a private entity, except that punitive
damages are not available.
SECTION 13. POSTING NOTICES. - A covered entity shall post notices for individuals to
whom this Act applies that describe the applicable provisions of this Act in the manner
prescribed by, and subject to the penalty provided under, section 711 of the Civil Rights Act of
1964 (42 U.S.C. 2000e-10).
SECTION 14. REGULATIONS.
(a) In General. - Except as provided in subsections 14(b), (c), (d), and (e) below, the
Commission shall have authority to issue regulations to carry out this Act.
(b) Librarian of Congress. - The Librarian of Congress shall have authority to issue
regulations to carry out this Act with respect to employees of the Library of Congress.
(c) Board. - The Board of the Office of Compliance shall have authority to issue
regulations to carry out this Act, in accordance with sections 303 and 304 of the Congressional
Accountability Act of 1995 (2 U.S.C. 1383, 1384), with respect to covered employees as defined
in section 101(3) of such Act (2 U.S.C. 1301(3)).
(d) President. - The President shall have authority to issue regulations to carry out this
Act with respect to covered employees as defined in section 411(c)(1) of title 3, United States
Code.
(e) Commission and Merit Systems Protection Board. - The Commission and the
Merit Systems Protection Board shall each have authority to issue regulations to carry out this
Act with respect to individuals covered by sections 7121, 7701, 7702, and 7703 of title 5, United
States Code.
SECTION 15. RELATIONSHIP TO OTHER LAWS. - Nothing in this Act shall affect the
interpretation or application of, and this Act shall not invalidate or limit the rights, remedies, or
10
procedures available to an individual claiming discrimination prohibited under, any other Federal
law or any law of a State or political subdivision of a State.
SECTION 16. SEVERABILITY. - If any provision of this Act, or the application of such
provision to any person or circumstances, is held to be invalid, the remainder of this Act and the
application of such provision to other persons and circumstances shall not be affected.
SECTION 17. APPROPRIATIONS. - There are authorized to be appropriated such sums as
may be necessary to carry out this Act.
SECTION 18. EFFECTIVE DATE. - This Act shall take effect 180 days after enactment and
shall not apply to conduct occurring before the effective date.
11
"ENDING DISCRIMINATION AGAINST PARENTS ACT OF 1999"
FACT SHEET
The President today transmitted to the Congress the "Ending Discrimination Against Parents Act
of 1999." This legislative proposal would prohibit employment discrimination against private
and public employees because they are parents or exercise parental responsibilities.
The Need for this Legislation
Federal law protects working parents from employment discrimination in a number of important
areas. Under title VII of the Civil Rights Act of 1964, for example, employees are protected
from discrimination on the bases of race, color, sex, national origin, and religion. The Pregnancy
Discrimination Act of 1978 further prohibits discrimination against workers on the basis of
pregnancy.
Despite these critical protections, there is no existing federal law that protects all workers from
employment discrimination that is based on their status as parents. Such protection is well
warranted, however. Where an employer, an employment agency, or a labor organization acts on
the basis of unsubstantiated assumptions that parents - or those who have caretaking
responsibilities for children or for others who are physically or mentally incapable of taking care
of themselves - are unwilling or unable to make a commitment to their jobs, it injures not only
the individuals concerned, but the economy as a whole.
For the individual who is subject to such discrimination, the consequences can be harsh and
immediate. Discrimination against parents or those with parental responsibilities is unfair. Such
discrimination deprives the victim of employment opportunities and undermines a person's
ability to control the progress of his or her career. Such discrimination can also reduce the
income received by the millions of families who rely on the wages of working parents to make
ends meet. It can thus limit opportunities for American families.
The economy is similarly hurt by discrimination against parents or those with parental
responsibilities. Such discrimination prevents the best use of available labor resources and is an
unfair method of competition in commerce. Because such discrimination is spread and
perpetuated through commerce, moreover, it is a problem that is national in scope.
"Ending Discrimination Against Parents Act of 1999"
Acting to respond to this problem, President Clinton proposed legislation prohibiting
employment discrimination against workers because they are parents or because they have
parental responsibilities. The legislation would apply to private and public employers, as well as
to employment agencies and labor organizations. The legislation would protect individuals who
are biological, adoptive, or foster parents, stepparents, or custodians of - as well as those who are
actively seeking custody or adoption of, and those who stand "in loco parentis" for - individuals
who are under the age of 18 or who are 18 or over but incapable of self-care because of a mental
or physical disability. The legislation would bar discrimination against parents in all aspects of
employment, including recruitment, referral, hiring, promotions, discharge, training, and other
terms and conditions of employment.
This legislation would prohibit employers from acting based on assumptions that parents,
or those with parental responsibilities, cannot satisfy the requirements of a particular position. It
would thus, for example, prohibit employers:
from taking a parent off the "fast track" due to unsubstantiated concerns that parents
cannot meet the requirements of demanding jobs;
from preferring applicants without children over equally or better qualified working
parents; or
from refusing to hire single parents under any circumstances.
This legislation would not, on the other hand, prohibit an employer from making
decisions on the basis of a person's job performance. The legislation would not, for example,
prevent an employer from disciplining workers who arrive late, even if an individual is late
because of childcare responsibilities. The legislation also would not bar an employer from
rejecting, for a job that requires extensive travel, an applicant who states that he is unwilling to
travel because of his parental responsibilities. Thus, the legislation would not interfere with an
employer's ability to select workers who are able to perform the jobs in question; the legislation
would simply ensure that workers are not discriminated against simply because they are parents.
The scope of this problem has been recognized in numerous states (including Alaska,
Nebraska, New Hampshire, New Jersey, and South Dakota), plus the District of Columbia, which
prohibit, or authorize prohibition of, discrimination based on parental or familial status. The
Federal government should do no less.
"ENDING DISCRIMINATION AGAINST PARENTS ACT OF 1999"
SECTION-BY-SECTION
Short Title
Section 1 assigns the draft bill the short title "Ending Discrimination Against Parents Act
of 1999."
Findings
Section 2 sets forth findings regarding the problems caused by, and the benefits of
Federal protection against, employment discrimination against parents and those with parental
responsibilities. The findings state that no existing federal law protects all workers from
discrimination based on their status as parents; that such discrimination has occurred in both the
private and the public sectors and has been largely unremedied; that such discrimination reduces
family incomes and burdens interstate commerce; and that elimination of such discrimination
would benefit both families and the economy as a whole.
Purposes
Section 3 states that the purposes of the Act are to prohibit employers, employment
agencies, and labor organizations from discriminating against parents and persons with parental
responsibilities based on an assumption that they cannot satisfy the requirements of a particular
job. The Act bars covered entities from treating parents and those with parental responsibilities
unfavorably. The Act does not require, but does not prevent, covered entities from making
accommodations for parents and those with parental responsibilities, by, for example, allowing
flexible work schedules or offering employee benefits that provide advantages to families.
Where employment discrimination against parents or those with parental responsibilities
occurs, it is the purpose of the Act to provide meaningful and effective remedies for that
discrimination.
Definitions
Section 4 contains definitions.
Subsection (a) defines "Commission" as the Equal Employment Opportunity
Commission.
Subsection (b) defines "complaining party" to include all of those authorized to bring
administrative or judicial actions under the Act.
1
Subsection (c) defines "covered entity" to mean employers, employment agencies, labor
organizations, or joint labor-managementcommittees
Subsection (d) defines "demonstrates" to mean meeting the burdens of production and
persuasion.
Subsection (e)(1) defines "employee" to mean individuals covered under title VII of the
Civil Rights Act of 1964; the Government Employee Rights Act of 1991; the Congressional
Accountability Act of 1995; or section 411(c)(1) of title 3, United States Code. Subsection (e)(2)
states that the term "employee" covers applicants for employment and former employees.
Subsection (f)(1) defines "employer" to mean entities covered by section 701 or section
717 of title VII of the Civil Rights Act of 1964; the Government Employee Rights Act of 1991;
the Congressional Accountability Act of 1995; or section 411(c)(2) of title 3, United States Code.
Section (f)(2) states that the term "employer" does not include a bona fide private membership
club (other than a labor organization) which is exempt from taxation under section 501(c) of title
26, United States Code.
Subsection (g) defines "employment agency" as it is defined in title VII of the Civil
Rights Act of 1964.
Subsection (h) defines "incapable of self-care" to mean that an individual requires active
assistance or supervision to provide daily self-care in three or more of the "activities of daily
living" (ADLs) or "instrumental activities of daily living" (IADLs). Subsection (h) gives
examples of ADLs and IADLs.
Subsection (i) defines "labor organization" as it is defined in title VII of the Civil Rights
Act of 1964.
Subsection (j) defines "Office of Compliance" as it is used in the Congressional
Accountability Act of 1995.
Subsection (k) defines "parent" to mean a person who, with regard to an individual who
is under the age of 18 or who is 18 or over but incapable of self-care because of a physical or
mental disability: (1) has the status of a biological parent; an adoptive parent; a foster parent; a
stepparent; or a custodian of a legal ward; (2) is actively seeking legal custody or adoption; or (3)
stands in loco parentis to such an individual. Persons who are "actively seeking legal custody or
adoption" are those who have been pursuing the requirements to obtain legal custody or to adopt
and whose custody or adoption of an individual described above reasonably appears to be
imminent. Persons who are "in loco parentis" include those with day-to-day responsibilities to
care for and financially support a child.
Subsection (1) defines "person" as it is defined in title VII of the Civil Rights Act of 1964.
2
Subsection (m) defines "physical or mental disability" to mean a physical or mental
impairment that substantially limits one or more of the major life activities of an individual.
Subsection (n) defines "state" as it is defined in title VII of the Civil Rights Act of 1964.
Discrimination Prohibited
Section 5 sets forth prohibited discrimination.
Subsection (a) describes unlawful employment practices by employers. It mirrors the
prohibitions of title VII of the Civil Rights Act of 1964, as applied to discrimination against
parents.
Subsection (b) describes unlawful employment practices by employment agencies. It
mirrors the prohibitions of title VII of the Civil Rights Act of 1964, as applied to discrimination
against parents.
Subsection (c) describes unlawful employment practices by labor organizations. It
mirrors the prohibitions of title VII of the Civil Rights Act of 1964, as applied to discrimination
against parents.
Subsection (d) bars discrimination against parents in training programs. It mirrors the
prohibitions of title VII of the Civil Rights Act of 1964.
Retaliation and Coercion Prohibited
Subsection 6(a) bars retaliation against an employee because that employee has opposed
acts made unlawful by this Act or because the employee has participated in any way in filing a
charge or assisting in an investigation or proceeding under this Act.
Subsection 6(b) prohibits a covered entity from coercing, intimidating, or threatening an
employee because that individual has exercised, or planned to exercise, or assisted another in
exercising, rights protected by this Act.
These sections mirror the prohibitions of the Americans with Disabilities Act of 1990.
Other Prohibitions
Subsection 7(a) states that notwithstanding any other provision of this Act, the
Commission may not collect, or require covered entities to collect, statistics on the employment
of parents unless such statistics are to be used in investigation, litigation, or resolution of a claim
of discrimination under this Act.
3
Subsection 7(b) bars covered entities from adopting or implementing quotas with respect
to their employment of parents.
Mixed Motive Discrimination
Subsection 8(a) states that an unlawful employment practice is established where a
complaining party demonstrates that an individual's status as a parent, or retaliation, coercion,
threats, intimidation, or interference, was a motivating factor for an employment practice, even if
other factors also motivated the practice.
Subsection 8(b) states that when an individual proves a violation under this section and a
respondent demonstrates that it would have taken the same action in the absence of the
prohibited factor, a court or other entity authorized by this Act to award relief may grant
declaratory and injunctive relief, as well as attorney's fees and costs attributable only to the claim
of discrimination, and may not award damages or order admission, reinstatement, hiring,
promotion, or payment.
This section mirrors the provisions of title VII of the Civil Rights Act of 1964.
Disparate Impact
Section 9 states that, notwithstanding any other provision of this Act, the fact that an
employment practice has a disparate impact on parents, as "disparate impact" is defined in title
VII of the Civil Rights Act of 1964, shall not establish a violation of this Act.
Defenses Where Actions Taken in a Foreign Country
Subsection 10(a) permits a covered entity to take action otherwise prohibited under this
Act against an employee in a workplace in a foreign country if compliance with the Act would
cause the covered entity to violate the law of the country in which the workplace is located.
Subsections 10(b)(1)-(3) state that if a covered entity controls a corporation that is
incorporated in a foreign country, any prohibited actions taken by that corporation will be
presumed to be the actions of the covered entity. Conversely, the Act will not apply with respect
to the foreign operations of a corporation that is a foreign person not controlled by an American
covered entity. For purposes of evaluating control, the Act incorporates the factors set forth in
title VII of the Civil Rights Act of 1964.
Subsection 10(c) states that this Act shall not apply to a covered entity with respect to the
employment of aliens outside any State.
4
Enforcement and Remedies
Section 11 describes the ways in which the Act will be enforced and the remedies that
will be available for a violation of the Act.
Subsection (a) authorizes the Equal Employment Opportunity Commission, the Attorney
General, the Librarian of Congress, the Office of Compliance and its Board of Directors, the
Merit Systems Protection Board, the President, the courts, and/or any other person alleging a
violation of this Act to exercise, obtain, and use, as applicable, the powers, remedies, procedures,
and jurisdiction set forth in specified sections of title VII of the Civil Rights Act of 1964;
sections 7121, 7701, 7702, and 7703 of title 5, United States Code; specified sections of the
Government Employee Rights Act of 1991; specified sections of the Congressional
Accountability Act of 1995; and sections 411(b)(1), 435, and 451-56 of title 3, United States
Code. This subsection is not intended to authorize the Commission to require or monitor, or
covered entities to implement, an affirmative program of equal employment opportunity for
parents.
Subsection (b)(1) states that notwithstanding any limitation on the remedies incorporated
by reference in subsection 11(a), and except as provided otherwise in this Act, covered entities
that violate this Act will be liable for appropriate compensatory and punitive damages. Punitive
damages may be recovered if the covered entity engaged in a discriminatory practice or practices
with malice or with reckless indifference to the federally protected rights of an aggrieved
individual.
Subsection (b)(2) states that, notwithstanding subsection 11(b)(1), absent its consent to a
monetary remedy, a State may be liable for monetary relief only in an action brought by the
Attorney General in a federal court, and will not be liable for punitive damages.
Subsection (b)(3) states that, notwithstanding any limitations in this section, an individual
may bring an action in federal court for declaratory or injunctive relief against any appropriate
State official for a violation of this Act, and that the Attorney General may bring an action for
such relief against any appropriate State official or State.
Federal Immunity
Section 12 states that, notwithstanding any other provision of this Act, remedies under
this Act will be available against the United States to the same extent that remedies are available
against a private entity, except that punitive damages will not be available.
Posting Notices
Section 13 requires covered entities to post notices for individuals covered by the Act that
describe the applicable provisions of the Act. Section 13 incorporates the posting requirements
5
and penalties for failure to meet this obligation set forth in title VII of the Civil Rights Act of
1964.
Regulations
Section 14 identifies the entities that are authorized to issue regulations to carry out this
Act. The Commission is authorized to issue regulations except as explicitly provided in this
section; the Librarian of Congress is authorized to issue regulations with respect to employees of
the Library of Congress; the Board of the Office of Compliance is authorized to issue regulations
with respect to employees covered by the Congressional Accountability Act of 1995; and the
President is authorized to issue regulations with respect to employees covered under section
411(c)(1) of title 3, United States Code. The Commission and the Merit Systems Protection
Board (MSPB) are each authorized to issue regulations with respect to individuals covered by
sections 7121, 7701, 7702, and 7703 of title 5, United States Code. It is intended that the
Commission and the MSPB coordinate their regulations to ensure consistency.
Relationship to Other Laws
Section 15 states that nothing in this Act shall affect the interpretation or application of,
and that this Act shall not invalidate or limit the rights, remedies, or procedures available to an
individual claiming discrimination under, other Federal, State, or local laws.
Severability
Section 16 states that if any provision of this Act, or any application of a provision of this
Act, is held to be invalid, the remainder of this Act, and the application of the provision to other
persons and circumstances, will not be affected.
Appropriations
Section 17 states that there are authorized to be appropriated such sums as may be
necessary to carry out this Act.
Effective Date
Section 18 states that this Act shall take effect 180 days after enactment and will not
apply to conduct occurring before the effective date.
6
Copyright 1999 Times Mirror Company
Los Angeles Times
April 17, 1999, Saturday, Home Edition
SECTION: Part A; Page 20; National Desk
LENGTH: 1093 words
HEADLINE: JOB PROTECTIONS FOR PARENTS DEBATED;
LABOR: CLINTON TO PROPOSE LAW BANNING DISCRIMINATION AGAINST THOSE
WITH
CHILDREN. BUT SOME SAY THERE IS NO NEED FOR SUCH A MEASURE.
BYLINE: MELISSA HEALY, TIMES STAFF WRITER
DATELINE: WASHINGTON
BODY:
After her first child's birth, Diana Piantanida had planned to join the
legions of Americans who juggle paid work and parenthood. But two weeks into her
maternity leave, the St. Louis woman learned that she would be returning to her
employer to fill what her boss allegedly called "a job a new mom could
handle"--at half the pay and much less responsibility.
Piantanida cried foul, charging that her employer was discriminating against
her because she was a parent. But in the five years since she took the Wyman
Center of St. Louis to court, judge after judge has effectively shrugged and
told her that her boss had done nothing wrong. "There was no protection
whatsoever for me," Piantanida says now.
In 42 states, including California, there is no explicit protection for
workers who believe that their employers have treated them unfairly because they
have children. And many employers--even those who compete to be recognized as
"family friendly"--do not want any.
"It would provide a weapon for poorly performing employees to use
improperly," said Angel Gomez III, an employment-law attorney based in Century
City.
In the next few weeks, President Clinton plans to enter the debate by
introducing legislation in the Senate that would outlaw workplace
discrimination against parents.
In part, Clinton's calculus is political. With Democrats and Republicans
competing to be seen as champions of working families, Clinton's proposed
legislation could become a rallying cry for Democrats and pose a dilemma for
many Republicans. In the 2000 elections when both parties will be wooing an army
of "soccer moms," standing for parental rights is a natural for Democrats--and a
temptation for Republicans.
Clinton is also betting on support from social conservatives who often feel
that their commitment to families hurts them in the workplace.
The merging of odd political alliances, "is classically Clintonesque," said
Democratic pollster Celinda Lake.
Need for Legislation Is Challenged
Some employment experts question the need for legislation. Susan Meissenger
of the American Society of Human Resources Managers, called such protections "a
solution in search of a problem."
With the labor market tight, and expected to stay that way for years to come,
employers are working overtime to make their workplaces more family friendly,
she said. In addition to tying personnel managers up in more red tape, she
added, "all this does is make politicians feel good."
However, if business-oriented Republicans oppose legislation, Lake warned,
they probably will be seen as anti-family. And they could pay dearly for it at
the polls, as President Bush did when he twice vetoed a bill requiring employers
to offer unpaid leave to parents of newborns or workers caring for sick
relatives.
The Family and Medical Leave Act, the first bill Clinton signed into law when
he took office in 1993, has proved extremely popular with working families.
Derided at the time as a toothless sop to special interests, it has enabled
thousands of Americans to stay home when family illness or birth required
it--even if they had to do so without a paycheck.
Some family law experts think that the proposed Parental Discrimination Bill
could provoke a similar response.
Although few workers currently charge that they have faced discrimination
because they are parents, Donna Lenhoff of the National Partnership for Women
and Families argued that may be because such protections are not explicitly
contained in civil rights law. If such a bar were clarified by legislation,
Lenhoff and others believe, more parents would come forward.
But for all the political appeal of a parent-discrimination statute,
attorneys who specialize in employment law said that complainants will not be
coming out of the woodwork any time soon. Proving parental discrimination would
remain difficult even with an explicit prohibition in place.
And beyond that, employment specialists maintain, it just does not happen
very often.
"Obviously it makes for a sexy campaign topic, but in California, there
doesn't seem to be a need from an employee's side," said Gomez, the Century City
attorney.
Years ago, demonstrating such discrimination might have been easier, at least
for women. Many companies explicitly excluded mothers of small children from
certain positions, such as those requiring travel or lots of extra hours. Today,
few companies do so openly, and many employers have sought to accommodate those
who juggle work and family responsibilities with flexible new policies on,
among other things, sick leave, work hours and use of compensatory time.
Lenhoff acknowledged that a law protecting parents may be used infrequently
but drew a different conclusion from that of employer representatives like
Meissenger.
"If it isn't really a problem, if these kind of underlying stereotypes don't
motivate employers' decisions, then why does it hurt to prohibit it, in case
there are six people out there who do retain those stereotypes?" she asked. "It
seems like an important principle."
Fathers Might Benefit From Proposed Law
With men getting more involved in their children's care, New York employment
attorney Steven Eckhaus said, he can easily envision more fathers alleging
workplace discrimination in the future.
For now, however, Eckhaus said women would probably benefit most from the
proposed law.
He represents Joann Trezza, a New York-based insurance attorney and mother of
two children, 6 and 11 years old. Trezza has taken her employer, the Hartford
Financial Services Group, to court, charging that she has been passed over
repeatedly for promotion in favor of less-qualified employees who are either men
or childless women.
In Trezza's complaint, she cites comments by senior attorneys in Hartford's
legal department that disparaged the job performance of working mothers
generally. In one comment--denied by its alleged source--one of her bosses
opined at a business dinner that "women are not good planners, especially women
with kids."
But Trezza's case may well be as difficult as Piantanida's was five years
ago. "Parenthood is not a protected class under Title VII," wrote U.S. District
Judge Michael Mukasey in a December ruling limiting the scope of the trial
against Hartford.
Trezza has declined to comment on the case, which is still pending. But
Piantanida said that she knows what it feels like when parenthood costs you a
job.
"I was all alone. Everywhere I turned I felt like I was hitting brick walls."
Clinton Seeks to Give Parents Standing
To Create Basis for Discrimination Suits
By JEANNE CUMMINGS
their biases."
Staff Reporter of THE WALL. STREET JOURNAL
Mr. Clinton announced his intention to
WASHINGTON-Renewing its court-
introduce such legislation in his State of
ship with "soccer moms" as the presiden-
the Union address; he recently expanded
tial campaign approaches, the Clinton ad-
his fund-raising stump speech to signal
ministration will seek to create a broad
that helping parents will be a major theme
new basis for job-discrimination lawsuits
for Democrats in next year's elections.
by classifying parents as a "protected
"We have not done enough in the U.S. to
I
class."
help people balance work and family." the
Under the proposal. parents would have
president said Friday night at a Boston De-
the same standing to file discrimination
mocratic Party event.
cases as those who already fall under the
The message dovetails with Vice Presi-
legally protected classes of race. sex, age,
dent Al Gore's urban-sprawl initiative,
religion or disability. Legislation will be
which is aimed at reducing the time par-
sponsored by Democratic Sen. Christopher
ents spend in traffic jams and creating
Dodd of Connecticut and is expected by the
more green space for families to enjoy.
end of the month.
Although the antidiscrimination pro-
Business groups oppose the plan. argu-
posal probably will face a frosty reception
ing that it could prompt a flood of lawsuits
in the GOP-controlled Congress. the elec-
when there is little evidence that a problem
tion-year dynamics could make opposition
exists. They say disgruntled or poor-per-
risky.
forming employees could exploit the new
President Clinton's education propos-
legal standing.
als and criticism of former President Bush
But White House Domestic Policy Ad-
for vetoing the Family and Medical Leave
viser Bruce Reed says it is the product of
Act helped him tap the middle-class soccer-
"real cases." Among them is a New Jersey
mom vote in 1992. The Family and Medical
woman who claimed she was passed over
Leave Act became the first bill signed into
for promotions because she is a mother. A
law by Mr. Clinton. The administration
New York federal judge rejected her law-
this year is expected to try to expand the
sult, saying the person who was pro-
now-popular law, which allows workers to
moted-who had no children-was of the
take time off without pay to help sick or dis-
same sex.
abled relatives.
The White House acknowledges that its
The White House is making no secret of
evidence is anecdotal, but Mr. Reed says
its intention to make the fate of the parent
that because such discrimination isn't ille-
antidiscrimination proposal an issue next
gal, "it is impossible to tell how many
year. "A truly pro-family Congress would
cases there will be. Like most cases of dis-
pass this in a heartbeat," Mr. Reed says.
crimination, employers don't advertise
"We'll see."
THE WALL STREET JOURNAL
MONDAY, APRIL 19, 1999
Clinton to Seek Job Bias Protection for Parents
Word of the administration's plan
has already begun to stir debate.
By CHARLES BABINGTON
successfully backed the Family and
A1
Some family advocates say the pro-
Medical Leave Act. Now, they simply
Washington Post Staff Writer
posal would protect employees who
want to replicate that success, be
legitimately decline to work overtime
charges, even though there's little
The Clinton administration is drafting
or make other workplace decisions
evidence of discrimination against
legislation that would ban workplace dis-
based on the demands of parenthood.
workers based on their roles as
crimination against parents, a proposal that
Major employer groups, however,
parents.
would extend to millions of workers new
say there is little evidence of discrimi-
Clinton acknowledges he is hoping
grounds for suing employers who deny
nation against parents, and they fear
to build on the triumph of the Family
them jobs or promotions because they
the proposed law could ignite a
and Medical Leave Act, but only
spend time on family matters.
firestorm of unwarranted litigation.
because parents need more help.
The initiative, to be introduced in the
"This is feel-good legislation, but
Senate in a few weeks, would treat parents
the implications of it are really dra-
He first signaled his attempt to
"as a protected class with respect to employ-
matic," said Larry Lorber, a Wash-
pass additional legislation for families
in his State of the Union address in
ment discrimination," according to draft
ington lawyer who represents em-
ployers in discrimination cases. "Tm
January, saying he planned to do
language provided by White House aides. It
not sure they've been thought
more "to help the millions of parents
would, for example, prohibit employers
through."
who give their all every day at home
from "taking a mother or father off of a
Donna Lenhoff, general counsel
and at work." He mentioned several
career-advancing path out of a belief that
for the National Partnership for
ideas, including a higher minimum
parents cannot meet requirements of these
Women & Families, said, "There's a
wage, subsidies for child care and a
jobs."
lot of feeling out there by parents that
tax credit for stay-at-home parents.
If enacted by Congress, labor lawyers and
they do suffer discrimination in the
Pat Cleary, vice president for hu-
other workplace experts say the plan could
workplace."
man resource policies with the Na-
trigger a raft of new discrimination claims
Aides to Clinton and Sen. Christo-
tional Association of Manufacturers,
in a federal court system already flooded
pher J. Dodd (D-Conn), likely spon-
with lawsuits alleging bias based on gender,
sor of the bill, have compiled nearly a
said that Clinton's newest proposal to
race, religion, age or disability. Those cate-
dozen examples of alleged workplace
classify parents as a "protected class"
gories are protected under existing laws.
discrimination they say would have
is not credible. "No one among our
White House aides say the proposal is the
been remedied by their proposal. For
membership that I'm in contact with
example, they cite a Minnesota moth-
was aware of any discrimination
latest step in President Clinton's effort to
er who applied for a teaching job that
against
parents.
It
seems
to
be
make the American workplace more hospi-
included coaching duties. The school
based on absolutely nothing," said
table to families, and builds on the popular
hired a childless woman with less
Cleary.
Family and Medical Leave Act, which re-
teaching and coaching experience.
Bruce Reed, Clinton's domestic
quires unpaid time off for workers tending
The mother sued under existing
policy adviser, said the proposed
to newborn, sick or newly adopted children.
discrimination law, claiming the
legislation is justified even if scores of
Although Clinton has yet to lay out the
school's hiring policy discriminated
confirmed cases of discrimination do
details of how the new initiative would
against parents.
not exist.
work, by categorizing parents as a "protect-
Clinton's initiative "would clearly
prohibit such discrimination," ac-
"We hope this kind of discrimina-
ed class," the proposal has the potential to
cording to a White House summary
tion isn't rampant," he said. "But
go far beyond the more limited benefits
of the proposed legislation.
there have been some troubling cas-
spelled out in the family leave act. As with
But employer groups argue that
es, and no form of discrimination is
PARENTS, From Al
such anecdotal examples don't justify
something that employers are going
the proposed legislation.
to
readily
admit.
Parents should
other civil rights laws, the proposal's
"Employment litigation has ex-
not be discriminated against in the
applicability to specific workplace
ploded in the courts," said Randy
workplace, and we want to make
circumstances would in part be deter-
Johnson, vice president for labor and
sure they have legal protection
mined in federal courts as workers
employee benefits at the U.S. Cham-
against that."
attempt to seek its protections.
ber of Commerce. "Employers are
Privately, White House officials
concerned about one more statute
acknowledge that they face a difficult
that would give complainants and
battle in getting the legislation enact-
lawyers one more thing to sue
ed with generally business-friendly
about."
Republicans in control of Congress.
Johnson contends that Clinton
But strategists on both sides also say
and congressional Democrats found
that the issue could have enormous
a popular issue in 1993, when they
political appeal to voters, a factor that
could make it difficult to dismiss
without a struggle.
WASHINGTON POST
4.17.99
Nat Hentoff
A Different Kind of Discrimination
Jesus Rios, 18, ranked in the top 4 percent
her organization desires can be achieved
Therefore, students who have access to
averages-including whites, Asian Americans
during his senior year at San Benito High
without contradicting California's Proposi-
courses not equally available to all California
and American Indians. But the lawsuit claims
School in Hollister, Calif. Nonetheless, he was
tion 209, which prohibits using race or
high school students get extra preference at
that black, Latino and Filipino students with
ref
I admission to the University of Cali-
ethnicity as a factor in admissions to public
Berkeley. It is a discriminatory preference that
4.0 averages were "denied admission at far
fornia at Berkeley.
colleges. The legal basis for this lawsuit is the
rewards privilege rather than merit.
higher rates than 4.0 white students."
The son of immigrant farm workers, Rios,
Civil Rights Act of 1964, which forbids
Moreover, students who take expensive pri-
As West-Faulcon says, "All of the students
starting at the age of 8, worked in the fields,
discrimination in any schools receiving feder-
vate preparatory courses geared to college
rejected should be seen as more than numbers
dug ditches after high school classes and was
al funds, as nearly all colleges do.
entrance exams have an extra admissions edge
that don't tell you enough about each individ-
an active member of a Latino student organi-
The law-
based on fam-
ual-like Jesus Rios."
zation. Now a student at the University of
suit empha-
ily income-
In March, the University of California
California at Davis, he is the first member of
sizes that
SWEET LAND OF LIBERTY
an index of
Board of Regents decided to guarantee a place
his
ly to attend college and hopes to be a
more than 50
class discrim-
in the university system to students in the top
civil engineer.
percent of ap-
ination that,
Rios is a named plaintiff in Rios v. the
4 percent of the state's high schools. Only
plicants admitted to the Berkeley campus come
in addition to minorities, affects the children of
Regents of the University of California, an
some 3,500 students will be affected.
anti-discrimination federal suit that may chart
from only 5 percent of the state's 2,600 high
poor and working-class white families in high
But the board refused to eliminate the
schools. These are schools that have a number
a new way to level the educational playing
schools that also have few, if any, advanced
bonus points for advanced placement honor'
field even if the Supreme Court eventually
of advanced placement courses for which the
placement courses.
courses, and it requires no remedial programs
declares race- and ethnicity-based admission
Berkeley admissions office gives extra grade
As Michael Fletcher noted in his Feb. 3 Post
or additional financing for low-performing
preferences unconstitutional.
point credit to an applicant. And these high
story, "Civil Rights Groups File Suit Over Calif.
high schools.
Among the organizations bringing the
schools have largely white enrollments.
Admissions Policy," in view of Berkeley's em-
John Davis, chairman of the Board of
case-on behalf of Rios and more than 750
More than half the state's public high
phasis on advanced placement courses and SAT
Regents, told the Chronicle of Higher Educa-
black, Hispanic and Filipino American stu-
schools-many with largely minority stu-
scores (which can be enhanced by private
tion: "You're letting these schools off the
dents-are the NAACP Legal Defense Fund,
dents-offered no advanced placement courses
preparatory sessions), the suit claims that more
hook." As well as the state of California.
the ACLU and the Mexican American Legal
during the 1997-98 school year. But 4 percent of
than 750 African American, Hispanic and Filipi-
Discrimination by parental income still rules.
Defense Fund.
all the high schools offered 21 or more advanced
no American applicants with grade point aver-
Even when there was affirmative action in
Attorney Kimberly West-Faulcon of the
placement courses. Maybe this suit will moti-
ages of 4.0, like Jesus Rios, were rejected by
the state, both minority and white students
NAACP. Legal Defense Fund says that a
vate parents and legislators to ask why this is so
Berkeley.
were discriminated against because of their
victory will show that the admissions policy
in California and other states.
So were 7,000 other students with 4.0
economic status.
Content and programming copyright (c) 1999 American
Broadcasting Companies, Inc. All rights reserved. No quotes
from the materials contained herein may be used in any media
without attribution to American Broadcasting Companies, Inc.
This transcript may not be reproduced in whole or in part
without prior permission. For further information please
contact ABC's Office of the General Counsel. Transcribed by
Federal Document Clearing House, Inc. under license from
American Broadcasting Companies, Inc. All rights reserved.
ABC NEWS
SHOW: ABC WORLD NEWS SATURDAY (6:30 pm ET)
APRIL 17, 1999
Transcript # 99041706-j05
TYPE: PACKAGE
SECTION: NEWS
LENGTH: 436 words
HEADLINE: PARENTS' RIGHTS
BYLINE: TIM O'BRIEN, ELIZABETH VARGAS
HIGHLIGHT:
DO PARENTS NEED PROTECTION?
BODY:
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND
MAY BE
UPDATED.
ELIZABETH VARGAS: Florida residents are assessing the scorched remains of 35,000
acres of fires that have burned throughout the region in the past days. Light
rain was welcome in Tampa today where four dozen of homes have been destroyed by
fire.
In Washington, a new initiative by the Clinton administration to add
significantly to the number of people in the work place protected by law. As
ABC' Tim O'Brien reports, parents may soon find the law in their corner.
TIM O'BRIEN, ABC News: (voice-over) The idea is to give parents the same kind of
protection against job discrimination that the law now routinely accords
disabled people, women and minorities.
JUDITH LICHTMAN, Partnership for Women & Family: I think it's a great idea. We,
as a nation, pay lip service all the time to being a family-friendly nation, a
child-centered nation. A law like this one President Clinton is proposing
really puts our values where our mouth is.
TIM O'BRIEN: (voice-over) The administration admits it has no idea how
widespread discrimination against parents may be, and that's a concern to
business groups.
RANDALL JOHNSON, U.S. Chamber of COMMERCE: Congress shouldn't be, the
administration shouldn't be considering passing a law because it may sound good.
We need to really look at it. What is the problem they're really looking at?
Document it before we go forward.
TIM O'BRIEN: (voice-over) The White House says the law would not allow being a
parent to become an excuse for not doing the work.
BRUCE REED, Clinton Domestic Policy Advisor: If the job requires them to be
there 100 hours a week and they can't be there 100 hours a week, then they can't
file suit for discrimination.
TIM O'BRIEN: (voice-over) Conservative groups warn such a law might drive a
wedge between parents and nonparent employees.
BARBARA LEDEEN, Independent Women's Forum: The principle here is wrong. The
principle here is that the federal government will decide how people work, where
people work, how much they will get paid.
TIM O'BRIEN: (on camera) The administration says it has a long list of examples
of job discrimination against parents, but it may need better evidence of a
national problem if it is to persuade a Republican-controlled, Congress this a
law is necessary.
Tim O'Brien ABC News, at the White House.
ELIZABETH VARGAS: When we come back -- The little boy at the center of a bitter
adoption case.
04/20/99 01:55 FAX 202 456 6218
OPL
002
Too
Mary Brown we much
to get This wes Tuen-
4-19-99
capsied
BC
Mary Beth Calin
mark Penn
Podesta
Clinton Seeks to Give Parents Standing
To Create Basis for Discrimination Suits
By JEANNE CUMMINGS
their blases."
staff Reporter of THE WALL. STREET JOURNAL
Mr. Clinton announced his intention to
WASHINGTON-Renewing its court-
Introduce such legislation in his State of
ship with "soccer moms" as the presiden-
the Union address: he recently expanded
tial campaign approaches. the Clinton ad-
his fund-raising stump speech to signal
ministration will seek to create a broad
that helping parents will be a major theme
new basis for job-discrimination lawsuits
for Democrats In next year's elections.
by classifying parents as a "protected
"We have not done enough in the U.S. to
class."
help people balance work and family,' the
Under the proposal, parents would have
president said Friday night at a Boston De-
the same standing to file discrimination
mocratic Party event.
cases as those who already fall under the
The message dovetalls with Vice Presi-
legally protected classes of race, sex, age.
dent AJ Gore's urban-sprawl initiative.
religion or disability. Legislation will be
which is aimed at reducing the time par-
sponsored by Democratic Sen. Christopher
ents spend in traffic jams and creating
Dodd of Connecticut and is expected by the
more green space for families to enjoy.
end of the month.
Although the antidiscrimination pro-
Business groups oppose the plan. argu-
posal probably will face a frosty reception
ing that it could prompt a flood of lawsuits
in the GOP-controlled Congress, the elec-
when there is little evidence that a problem
tion-year dynamics could make opposition
exists. They say disgruntled or poor-per-
risky.
forming employees could exploit the new
President Clinton's education propos-
legal standing.
als and criticism of former President Bush
But White House Domestic Policy Ad-
for vetoing the Family and Medical Leave
viser Bruce Reed says it is the product of
Act helped him tap the middle-class soccer-
"real cases." Among them is a New Jersey
mom vote in 1992. The Family and Medical
woman who claimed she was passed over
Leave Act became the first bill signed Into
for promotions because she is a mother. A
law by Mr. Clinton. The administration
New York federal judge rejected her law-
this year is expected to try to expand the
suit, saying the person who was pro-
now-popular law. which allows workers to
moted-who had no children-was of the
take time off without pay to help sick or dis-
same sex.
abled relatives.
The White House acknowledges that its
The White House is making no secret of
evidence is anecdotal, but Mr. Reed says
its intention to make the late of the parent
that because such discrimination isn't ille-
antidiscrimination proposal an issue next
gal. "it is impossible to tell how many
year. "A truly pro-family Congress would
cases there will be. Like most cases of dis-
pass this in a heartbeat." Mr. Reed says.
crimination. employers don't advertise
"We'll see."
THE WALL STREET JOURNAL
MONDAY, APRIL 19, 1999
Copyright 1999 Gannett Company, Inc.
USA TODAY
April 22, 1999, Thursday, FINAL EDITION
SECTION: NEWS;
Pg. 14A
LENGTH: 373 words
HEADLINE: Working parents unprotected
BYLINE: Bruce Reed
BODY:
As President Clinton said in his State of the Union address, it
should be against the law to discriminate against workers just
because they're parents.
But right now, in most states, parental discrimination is perfectly
legal. Just ask Joann Trezza, a New Jersey mother of two who was
passed over for promotion by employers who allegedly complained
that working mothers don't do either job well. A federal judge
ruled that current laws offer her no protection as a parent against
such discrimination.
Trezza is not alone. In response to this concern, a handful of
states -- including Michigan, Pennsylvania and Alaska -- have
adopted laws to prohibit employment discrimination against parents.
Soon the president will send Congress legislation, sponsored by
Sen. Chris Dodd, D-Conn., to protect all parents from discrimination
at work. It would prohibit employers from refusing to hire or
promote mothers and fathers out of some belief that parents don't
make good workers. No one should be denied a job just because
he or she is a parent.
The bill is narrowly tailored to cover only cases of overt discrimination
against a parent. It would not affect hiring and promotion decisions
made on the basis of job performance. If a parent can't put in
the hours or doesn't measure up, this legislation won't help them.
Some business lobbyists have tried to claim that, on the one hand,
discrimination against parents doesn't exist and, on the other,
this bill would unleash a flood of litigation. The truth is, if
employers don't discriminate, this bill won't cost them a penny.
Working parents don't have time to file frivolous lawsuits.
Others say that even though there have been a number of these
instances, we shouldn't prohibit parental discrimination unless
it's rampant. But surely, outright discrimination against any
parent is wrong and should be stopped, no matter how many cases
have been brought so far.
Nearly 50 million Americans are working parents -- more than at
any time in our history. We should do all we can to honor parents,
not punish them, for choosing to raise a family. If this Congress
is truly pro-family, it will approve this legislation in a heartbeat.
TITLE VII
(3) For purposes of this subsection, the determina-
(d) It shall be an unlawful employment practice for any
tion of whether an employer controls a corporation
employer, labor organization, or joint labor-manage-
shall be based on-
ment committee controlling apprenticeship or other
(A) the interrelation of operations;
training or retraining, including on-the-job training
programs to discriminate against any individual
(B) the common management;
because of his race, color, religion, sex, or national origin
(C) the centralized control of labor relations; and
in admission to, or employment in, any program
(D) the common ownership or financial control, of
established to provide apprenticeship or other training.
the employer and the corporation.
(e) Notwithstanding any other provision of this
subchapter, (1) it shall not be an unlawful employment
practice for an employer to hire and employ employees,
Unlawful Employment Practices
for an employment agency to classify, or refer for
employment any individual, for a labor organization to
SEC.2000e-2
classify its membership or to classify or refer for employ-
[Section 703]
ment any individual, or for an employer, labor organiza-
(a) It shall be an unlawful employment practice for an
tion, or joint labor-management committee controlling
employer -
apprenticeship or other training or retraining programs
to admit or employ any individual in any such program,
(1) to fail or refuse to hire or to discharge any indi-
on the basis of his religion, sex, or national origin in
vidual, or otherwise to discriminate against any
those certain instances where religion, sex, or national
individual with respect to his compensation, terms,
origin is a bona fide occupational qualification reason-
conditions, or privileges of employment, because of
ably necessary to the normal operation of that particular
such individual's race, color, religion, sex, or national
business or enterprise, and (2) it shall not be an unlawful
origin; or
employment practice for a school, college, university, or
(2) to limit, segregate, or classify his employees or
other educational institution or institution of learning to
applicants for employment in any way which would
hire and employ employees of a particular religion if
deprive or tend to deprive any individual of employ-
such school, college, university, or other educational
ment opportunities or otherwise adversely affect his
institution or institution of learning is, in whole or in
status as an employee, because of such individual's
substantial part, owned, supported, controlled, or
race, color, religion, sex, or national origin.
managed by a particular religion or by a particular
(b) It shall be an unlawful employment practice for an
religious corporation, association, or society, or if the
employment agency to fail or refuse to refer for employ-
curriculum of such school, college, university, or other
ment, or otherwise to discriminate against, any indi-
educational institution or institution of learning is
vidual because of his race, color, religion, sex, or national
directed toward the propagation of a particular religion.
origin, or to classify or refer for employment any
(f) As used in this subchapter, the phrase "unlawful
individual on the basis of his race, color, religion, sex, or
employment practice" shall not be deemed to include
national origin.
any action or measure taken by an employer, labor
(c) It shall be an unlawful employment practice for a
organization, joint labor-management committee, or
labor organization-
employment agency with respect to an individual who
is a member of the Communist Party of the United
(1) to exclude or to expel from its membership, or
States or of any other organization required to register as
otherwise to discriminate against, any individual
a Communist-action or Communist-front organization
because of his race, color, religion, sex, or national
by final order of the Subversive Activities Control Board
origin;
pursuant to the Subversive Activities Control Act of
(2) to limit, segregate, or classify its membership or
1950 [50 U.S.C. 781 et seq.].
applicants for membership, or to classify or fail or
(g) Notwithstanding any other provision of this
refuse to refer for employment any individual, in any
subchapter, it shall not be an unlawful employment
way which would deprive or tend to deprive any
practice for an employer to fail or refuse to hire and
individual of employment opportunities, or would
employ any individual for any position, for an employer
limit such employment opportunities or otherwise
to discharge any individual from any position, or for an
adversely affect his status as an employee or as an
employment agency to fail or refuse to refer any indi-
applicant for employment, because of such
vidual for employment in any position, or for a labor
individual's race, color, religion, sex, or national
organization to fail or refuse to refer any individual for
origin; or
employment in any position, if-
(3) to cause or attempt to cause an employer to
(1) the occupancy of such position, or access to the
discriminate against an individual in violation of this
premises in or upon which any part of the duties of
section.
such position is performed or is to be performed, is
3
ADEA
(b) It shall be unlawful for an employment agency to fail
(A) to observe the terms of a bona fide seniority
or refuse to refer for employment, or otherwise to
system that is not intended to evade the purposes of
discriminate against, any individual because of such
this chapter, except that no such seniority system
individual's age, or to classify or refer for employment
shall require or permit the involuntary retirement of
any individual on the basis of such individual's age.
any individual specified by section 631(a) of this
(c) It shall be unlawful for a labor organization-
title because of the age of such individual; or
(1) to exclude or to expel from its membership, or
(B) to observe the terms of a bona fide employee
otherwise to discriminate against, any individual
benefit plan-
because of his age;
(i) where, for each benefit or benefit package, the
(2) to limit, segregate, or classify its membership, or to
actual amount of payment made or cost incurred on
classify or fail or refuse to refer for employment any
behalf of an older worker is no less than that made
individual, in any way which would deprive or tend
or incurred on behalf of a younger worker, as
to deprive any individual of employment opportuni-
permissible under section 1625.10, title 29, Code of
ties, or would limit such employment opportunities
Federal Regulations (as in effect on June 22, 1989); or
or otherwise adversely affect his status as an em-
(ii) that is a voluntary early retirement incentive
ployee or as an applicant for employment, because of
plan consistent with the relevant purpose or pur-
such individual's age;
poses of this chapter.
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
Notwithstanding clause (i) or (ii) of subparagraph
section.
(B), no such employee benefit plan or voluntary
early retirement incentive plan shall excuse the
(d) It shall be unlawful for an employer to discriminate
failure to hire any individual, and no such em-
against any of his employees or applicants for employ-
ployee benefit plan shall require or permit the
ment, for an employment agency to discriminate against
involuntary retirement of any individual specified
any individual, or for a labor organization to discrimi-
by section 631(a) of this title, because of the age of
nate against any member thereof or applicant for
such individual. An employer, employment agency,
membership, because such individual, member or
or labor organization acting under subparagraph
applicant for membership has opposed any practice
(A), or under clause (i) or (ii) of subparagraph (B),
made unlawful by this section, or because such indi-
shall have the burden of proving that such actions
vidual, member or applicant for membership has made
are lawful in any civil enforcement proceeding
a charge, testified, assisted, or participated in any
brought under this chapter; or
manner in an investigation, proceeding, or litigation
under this chapter.
(3) to discharge or otherwise discipline an individual
for good cause.
(e) It shall be unlawful for an employer, labor organiza-
tion, or employment agency to print or publish, or cause
(g) [Repealed]
to be printed or published, any notice or advertisement
(h)(1) If an employer controls a corporation whose place
relating to employment by such an employer or mem-
of incorporation is in a foreign country, any practice by
bership in or any classification or referral for employ-
such corporation prohibited under this section shall be
ment by such a labor organization, or relating to any
presumed to be such practice by such employer.
classification or referral for employment by such an
(2) The prohibitions of this section shall not apply
employment agency, indicating any preference, limita-
where the employer is a foreign person not controlled
tion, specification, or discrimination, based on age.
by an American employer.
(f) It shall not be unlawful for an employer, employment
(3) For the purpose of this subsection the determina-
agency, or labor organization-
tion of whether an employer controls a corporation
(1) to take any action otherwise prohibited under
shall be based upon the-
subsections (a), (b), (c), or (e) of this section where age
(A) interrelation of operations,
is a bona fide occupational qualification reasonably
(B) common management,
necessary to the normal operation of the particular
business, or where the differentiation is based on
(C) centralized control of labor relations, and
reasonable factors other than age, or where such
(D) common ownership or financial control, of the
practices involve an employee in a workplace in a
employer and the corporation.
foreign country, and compliance with such subsec-
J It shall not be unlawful for an employer which is a
tions would cause such employer, or a corporation
State, a political subdivision of a State, an agency or
controlled by such employer, to violate the laws of the
instrumentality of a State or a political subdivision of a
country in which such workplace is located;
State, or an interstate agency to fail or refuse to hire or to
(2) to take any action otherwise prohibited under
discharge any individual because of such individual's
subsection (a), (b), (c), or (e) of this section-
age if such action is taken-
28
President's Proposal to Prohibit Discrimination Against Parents
April 18, 1999
Q:
What is the President's proposal on parental discrimination?
A.
The President will send Congress legislation that prohibits discrimination on the basis of
parental status in employment. The proposed legislation would protect those who choose
to have a family from discrimination in employment, in hiring, advancement, and other
employment decisions, because of their status as parents. This legislation would protect
parents of children and those seeking legal custody of children.
The President's proposed federal legislation would offer protection to workers who are
parents in a number of situations. It would prohibit employers from taking a mother or
father off career-advancing paths (e.g., partnership track) out of some generalized belief
that parents as a class are not capable of committing to the work requirements of the job.
It would also prohibit employers from hiring a person without children over an equally or
more qualified person with children. In general, the President's proposal would protect
workers from unfair assumptions about their commitment to their jobs in hiring,
advancement, and other employment decisions. While this law would clearly not prohibit
employers from making hiring and promotion decisions on the basis of job performance,
it would ensure that workers are not unfairly discriminated against simply because they
are parents.
Q:
What evidence do you have that discrimination against parents in the workplace is a
problem?
A:
Despite the fact that there is currently no cause of action for parental discrimination, we
have found numerous cases in which employees describe instances of discrimination due
to their status as parents. The precise extent of this problem is unknown at this time, but
however great or small, it deserves a remedy. This form of discrimination should simply
not take place at all and that is why the President has proposed this simple, but clear
prohibition.
Q:
How do you respond to the argument by opponents of the measure that this
proposal will cause an avalanche of litigation in the courts?
A:
Opponents of this proposal have argued both that employers do not discriminate on the
basis of parental status and that this proposal will cause an explosion of litigation. It is
difficult to see how the President's proposal will do both. Because the President's
proposal only prohibits discrimination on the basis of disparate treatment (not disparate
impact), plaintiffs will be required to show direct evidence of discrimination, which is a
difficult burden in employment discrimination cases. Therefore, there is no reason to
think that the creation of this cause of action will produce unnecessary and unwarranted
litigation.
Q:
Aren't you radically changing the rules of the workplace, if parents can now sue
when they're required to work overtime or when they are required to move?
A.
The President's proposal does not do that. This law would clearly not prohibit employers
from making hiring and promotion decisions on the basis of job performance, and
therefore, does not protect parents who are treated as every other employee. If all
employees are required to work overtime, then employees who are parents can be
required to work overtime. The President's proposal simply protects workers who are
parents from unfair assumptions about their commitment or capacity to work.
Examples of Cases in which claimants would be protected by a prohibition against
discrimination on the basis of parental status.
Minnesota case -- Discrimination in Hiring
The appellant applied for a full-time teaching position, which also included coaching
responsibilities. The district chose another female applicant, without children, for the position
with less teaching and coaching experience. Consequently, the appellant sued the district,
asserting a discrimination claim under the Minnesota Human Rights Act. Specifically, she
claimed that the district had a hiring policy that treated women-and men with young children
differently. However, she did not prove that men similarly situated were treated differently
(though such proof is generally required by gender discrimination law). The Minnesota Court of
Appeals found that the appellant had a cause of action under the Minnesota Human Rights Act
even though the act does not prohibit familial status discrimination. (Pullar V. Independent
School District No. 701, 582 N.W.2nd 273, 1998 Minn.)
Our proposed statute would clearly prohibit such discrimination, and would allow people in
every state to claim such a protection.
Eighth Circuit Case -- Discrimination in Demotion/Termination
Appellant, a new mom, was demoted to a job with fewer responsibilities and half the salary, after
she returned to work from maternity leave because the employer believed that new mothers could
not take their work responsibility seriously. (Piantanida V. Wyman Center, 116 F.3rd 340, (1997))
Though the court ruled she had no protection under the Pregnancy Discrimination Act (which is
part of Title VII), she would be protected under our proposed statute.
Second Circuit Case -- Discrimination in Promotion
Appellant, a married woman with two children aged six and eleven who had spotless record of
job performance, was passed up for a significant promotion, which was instead given to single
women with no children. Her employers specifically stated on several occasions that women
with children could not do either job well and questioned her commitment to the job. (Trezza V.
The Hartford Inc., 1998 W.L. 912101 (S.D.N.Y.)). While under present law she would have to
prove that a man received promotions who was in the same situation she was in, a heavy burden
to meet (that the court recognized was often impossible to meet), our proposed law would simply
prohibit such actions.
Note: We will also write the legislation so that you will not be able to discriminate on the basis
of future parental status.
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States Prohibiting Discrimination on the Basis of Parental Status
A number of states prohibit discrimination on the basis of parental or family status. Those states
that prohibit discrimination on the basis of family status define it to include parents.
Alaska
According to Alaskan state law, it is the policy of the state to "eliminate and prevent
discrimination in employment. because of parenthood. (Alaska Stat. @ 18.80.200 (1998))
"It is unlawful for an employer to refuse employment to a person, or to bar a person from
employment, or to discriminate against a person in compensation or in a term, condition, or
privilege of employment because of the person's race, religion, color, or national origin, or
because of the person's age, physical or mental disability, sex, marital status, changes in marital
status, pregnancy, or parenthood when the reasonable demands of the position do not require
distinction on the basis of age, physical or mental disability, sex, marital status, changes in
marital status, pregnancy, or parenthood. "(Alaska Stat. @ 18.80.200 (1998))
In addition, Alaskan state law prohibits an employer from printing or circulating a "statement,
advertisement, or publication, or to use a form of application for employment or to make an
inquiry in connection with prospective employment, that expresses, directly or indirectly, a
limitation, specification, or discrimination as to parenthood, unless based upon a bona fide
occupational qualification." (Sec. 18.80.220.)
Kentucky
Kentucky law specifically states that it is the purpose of state law to "safeguard all individuals
within the state from discrimination because of familial status, race, color, religion, national
origin, sex, age forty (40) and over, thereby to protect their interest in personal dignity and
freedom from humiliation, to make available to the state their full productive capacities, to secure
the state against domestic strife and unrest which would menace its democratic institutions, to
preserve the public safety, health, and general welfare, and to further the interest, rights, and
privileges of individuals within the state." (KRS @ 344.020 (Michie 1996))
Michigan
Michigan state law provides: "The opportunity to obtain employment, housing and other real
estate, and the full and equal utilization of public accommodations, public service, and
educational facilities without discrimination because of religion, race, color, national origin, age,
sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and
declared to be a civil right."
The law continues, "This section shall not be construed to prevent an individual from bringing or
continuing an action arising out of discrimination based on familial status before the effective
date of the amendatory act that added this subsection which action is based on conduct similar to
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or identical to discrimination because of the age of persons residing with the individual bringing
or continuing the action." (MCL @ 37.2102 (1998))
Nebraska
Nebraska law simply empowers its municipalities to prohibit discrimination on the basis of
familial status, if they so choose. The law states that: "Notwithstanding any other law or laws
heretofore enacted, all cities and villages in this state shall have the power by ordinance to
define, regulate, suppress, and prevent discrimination on the basis of race, color, creed, religion,
ancestry, sex, marital status, national origin, familial status as defined in section 20-311,
handicap as defined in section 20-313, age, or disability in employment, public accommodation,
and housing and may provide for the enforcement of such ordinances by providing appropriate
penalties for the violation thereof. It shall not be an unlawful employment practice to refuse
employment based on a policy of not employing both husband and wife if such policy is equally
applied to both sexes." (R.R.S. Neb. @ 18-1724 (1998))
Nebraska law further defines familial status as "one or more minors being domiciled with:
(1) A parent or another person having legal custody of such individual; or (2) The designee of a
parent or other person having legal custody, with the written permission of the parent or other
person." It also states that "the protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is in the process of
securing legal custody of any minor." (R.R.S. Neb. @ 20-311 (1998))
New Hampshire:
According to New Hampshire state law, it is the policy of the state to prohibit discrimination
based on familial status. "It shall be deemed an exercise of the police power of the state for the
protection of the public welfare, health and peace of the people of this state, and in fulfillment of
the provisions of the constitution of this state concerning civil rights. The general court hereby
finds and declares that practices of discrimination against any of its inhabitants because of age,
sex, race, creed, color, marital status, familial status, physical or mental disability or national
origin are a matter of state concern, that such discrimination not only threatens the rights and
proper privileges of its inhabitants but menaces the institutions and foundation of a free
democratic state and threatens the peace, order, health, safety and general welfare of the state and
its inhabitants." (R.S.A. 354-A:1 (1998)) New Hampshire's Commission for Human Rights is
empowered to "eliminate and prevent discrimination in employment, in places of public
accommodation and in housing accommodations because of age, sex, race, creed, color, marital
status, familial status, physical or mental disability or national origin as herein provided. '(R.S.A.
354-A:1 (1998))
New Jersey:
There is created in the Department of Law and Public Safety a division known as "The Division
on Civil Rights" with power to prevent and eliminate discrimination in the manner prohibited by
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this act against persons because of race, creed, color, national origin, ancestry, age, marital status,
affectional or sexual orientation, familial status, or sex or because of their liability for service in
the Armed Forces of the United States, by employers, labor organizations, employment agencies
or other persons and to take other actions against discrimination because of race, creed, color,
national origin, ancestry, marital status, sex, familial status or age or because of their liability for
service in the Armed Forces of the United States, as herein provided; and the division created
hereunder is given general jurisdiction and authority for such purposes.
In addition, New Jersey law requires their Attorney General "to receive, investigate, and act
upon complaints alleging discrimination against persons because of race, creed, color, national
origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex or
because of their liability for service in the Armed Forces of the United States. "(N.J. Stat. @
10:5-8 (1998))
However, New Jersey law does not specifically prohibit employment discrimination based on
family status, though their law does prohibit housing discrimination based on such status. (N.J.
Stat. @ 10:5-12 (1998))
Pennsylvania
Pennsylvania specifically grants its citizens a civil right to "obtain employment without
discrimination because of race, color, familial status, religious creed, ancestry, handicap or
disability, age, sex, national origin, the use of a guide or support animal because of the blindness,
deafness or physical handicap of the user or because the user is a handler or trainer of
support or guide animals. (43 P.S. @ 953 (1998))
Pennsylvania law defines "familial status" as "one or more individuals who have not
attained the age of eighteen years being domiciled with: (1) a parent or other person having legal
custody of such individual or individuals; or (2) the designee of such parent or other person
having such custody, with the written permission of such parent or other person." The statute
further states that "the protections afforded against discrimination on the basis of familial status
shall apply to any person who is pregnant or is in the process of securing legal custody of any
individual who has not attained the age of 18 years. "(43 P.S. @ 953 (1998))
South Dakota
South Dakota only grants its municipalities the power to "investigate any discriminatory
practices based on sex, race, color, creed, religion, ancestry, disability, familial status or national
origin, with respect to employment, labor union membership, housing accommodations, property
rights, education, public accommodations or public services." (S.D. Codified Laws @ 20-12-4
(1998)) South Dakota defines familial status as "the relationship of individuals by birth, adoption
or guardianship who are domiciled together." (S.D. Codified Laws @ 20-13-1 (1998))