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Hastings Law Journal

Abstract

Employment discrimination against employees based on their status as parents or family caregivers occurs at an alarming rate in this country, and is hardly a new phenomenon. Family Responsibilities Discrimination (FRD) disproportionately impacts working mothers, but advocates have begun to look beyond traditional gender discrimination and family leave theories of liability to strategies based on legislation expressly prohibiting discrimination based on parental or family caregiver status. This Article examines FRD legislation passed or proposed in recent years in the context of criticisms of this strategy by Professor Peggie Smith, who addressed the issue in her article Parental Status Employment Discrimination: A Wrong in Need of a Right? Smith argues that establishing parental status as a protected class would not offer many practical advantages to caregiver employees, and would likely involve many of the doctrinal and practical disadvantages associated with the formal-equality model of anti-discrimination law. She ultimately suggests a strengthening of accommodation laws instead. The Authors of this Article argue that convincing developments since Smith's article in FRD research, FRD cases, and FRD legislation with a broader familial focus compel a different conclusion. Not all family caregivers need the protection of accommodation laws, the Authors assert, and ultimately such laws do not combat discriminatory biases that drive many adverse employment actions against family caregivers. The Authors conclude that working in tandem with accommodation laws, laws specifically prohibiting discrimination based on family caregiver status are necessary to right this employment discrimination wrong.

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