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Minnesota editorial calls for better discrimination protections

A recent Minnesota editorial questioned whether the civil rights protections afforded to women in this state -- as well as the courts interpreting those legal protections -- are better than a neighboring state's record. The editorial was specifically referring to a case where that state's highest court determined that an employer's decision to terminate a female worker, solely on the ground that he feared his openly expressed attraction to her would result in infidelity to his wife, did not constitute sexual discrimination under state law.

The case might be an example of the importance of wisely choosing an experienced workplace discrimination lawyer. In that neighboring state case, the women claimed only a violation of the state's sexual discrimination law, rather than federal protections offered by Title VII. She also did not allege a claim of sexual harassment.

An experienced attorney might have advised the woman to allege alternative theories, as well as to proceed under all available laws -- state and federal. Indeed, discrimination law sometimes requires arguments by analogy, to fill in potential gaps in the protections offered to workers in the workplace.

For example, a recent study which analyzed perceptions based on gender and parental status found that employers -- of both genders -- might perceive a mother to be less committed to her career. That perception did not extend to women without children, or even to fathers. Notably, another study found that the pay gap between mothers and non-mothers outsized even the average salary discrepancy between men and women.

Such caregiver bias could be costly for employers, however. One study of family responsibility lawsuits brought in federal court estimated that roughly two-thirds of the plaintiffs prevailed at trial -- a success rate almost twice as high as other federal employment discrimination cases. The number of such lawsuits brought in federal and state courts, as well as before governmental agencies, also increased by almost 400% from 1998 to 2008.

Although family responsibility discrimination is not expressly codified in federal civil rights statutes, disparate treatment based on gender bias is a prohibited category. That unlawful treatment toward working mothers might take many forms of gender bias, such as a failure to promote or exclusion from material work events. The Family Medical Leave Act provides for unpaid leave for up to 12 weeks per year to care for family members with serious health conditions.

Source: Star Tribune,"Editorial: Take steps to protect 'irresistible workers,'" Jan. 10, 2013

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