Jan 26, 201710:13 AMLaw at Work
with Jessica M. Kramer and Ashlie B. Johnson
Must I allow my employees time off when their child’s school is closed?
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Let’s say an employer has two employees — Alfred (a dad) and Dominique (a mom) — who both miss work to stay home with their respective children, and the male is penalized because the employer saw his choice to stay home as discretionary, whereas the female is not penalized because the employer saw the female’s decision as necessary, then the employer has just treated Alfred more harshly than a similarly-situated female employee, which most likely constitutes sex (gender) discrimination in violation of the Wisconsin Fair Employment Act, Title VII of the Civil Rights Act, and likely other laws. Even in a situation where there is no Alfred, if all employees who take time off for children happen to be female, and time taken off by their male counterparts for other reasons is not equally frowned upon, there may be an issue of sex discrimination.
“Family status” or “family responsibilities” discrimination is a developing area of the law. The theory goes that if one employee is treated a certain way because he or she has children when another without children is treated differently, then one employee’s family status is the basis for the treatment and that should be a protected status. This particular type of protection is not explicitly recognized under state or federal law (some other states, as well as local laws, do address it, and federal employees enjoy parental status protection). However, if marital status or sexual orientation may be factors in a person’s family status and whether they stay home with their children, those are protected classes that have gotten employers into hot water in the past.
In general, an employer that is empathetic of its employees’ individual situations has been seen to be a good employer. However, the best employers are those who create and implement employment practices and policies in a way that does not take such things as gender, sexual orientation, or marital status into account.
So what does this all mean? If you write up all of your employees who took off to stay home with a child yesterday due to the snow day you may be a meanie, but you have likely not violated any employment laws.
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