What Employers Need to Know About Familial Status Discrimination

One of the changes made by the recently passed Women’s Economic Security Act was the addition of “familial status” as a protected category under the Minnesota Human Rights Act (MHRA). See H.F. 2536. Here’s what employers need to know about this new protected class under Minnesota law:

How is “Familial Status” Defined? “Familial status” is defined as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.” The law also provides that the “protections afforded against discrimination on the basis of family status apply to any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.” Minn. Stat. § 363A.03, subd. 18. Familial status has been a protected status under the MHRA for purposes of housing for several decades.

What Does the Law Prohibit? Amended Minn. Stat. § 363A.08, subd. 2, now states that “except when based on a bona fide occupational qualification, it is an unfair employment practice for an employer, because of . . . familial status . . . to: (1) refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment; or (2) discharge an employee; or (3) discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment.” In addition, unless based on a bona fide occupational qualification, employers may not: (1) request or require information from applicants about familial status during the hiring process; (2) seek or obtain information regarding familial status for purposes of making job decisions; or (3) print or publish a notice or advertisement that specifies a preference or limitation with respect to familial status. See Minn. Stat. § 363A.08, subd. 4.

When Did the Familial Status Provision Take Effect? The law’s prohibition against discrimination on the basis of familial status took effect on May 12, 2014.

What is Not Familial Status Discrimination? Although the law prohibits discrimination based on familial status, nothing in the law requires that employers provide accommodations or special treatment based on an employee’s familial status. In a recent interpretive letter, the Commissioner of the Minnesota Department of Human Rights stated that the Department would not consider any of the following situations to constitute familial status discrimination:

  • Failure to provide special accommodations such as additional leave or exceptions to other company policies due to an employee’s parentage of minor children or pregnancy other than what accommodations are already required under current law;
  • Failure to provide special accommodations in work schedules, e.g. daytime rather than evening or night, due to an employee’s parentage of minor children;
  • Failure to provide special accommodations or exceptions to ordinary performance expectations or evaluations due to an employee’s parentage of minor children or pregnancy;
  • Imposition of higher employee costs for health insurance, e.g. for family or employee plus one coverage as opposed to single coverage as long as any employer subsidy/share is identical to that provided to other employees;
  • Failure to provide special accommodations such as preferred parking spots or additional commuting expense or transit expense reimbursements or vouchers due to an employee’s parentage of minor children or pregnancy that may require additional expense or frequency to bring a minor child to or from daycare and/or school;
  • Requiring the employee to reimburse for personal use of company phones at a higher level than other employees due to more frequent personal use due to an employee’s parentage of minor children or to use their own phone for personal calls if a similar requirement is imposed on other employees;
  • Failure to provide on-site day care or employer reimbursement for day care expense;
  • Failure to provide child care expense reimbursement under a tax-advantaged, flexible spending account; or
  • Failure to provide special accommodations or exceptions to employee travel requirements due to an employee’s parentage of minor children.

Is “Family Caregiver” a Protected Category Under the New Law? No. Although an initial version of the legislation would have included “family caregiver” status as a separate protected category under the MHRA, the final version of the bill that was signed into law did not include “family caregiver” as a protected category. The initial version of the legislation defined “family caregiver” as “a person who cares for another person: (1) who is related by blood, marriage, or legal custody; or (2) with whom the person lives in a familial relationship.” However, this was not included in the final legislation. Accordingly, the only new protected category for purposes of the MHRA is “familial status.”

Takeaway: Employers should review their policies and practices to ensure compliance with the new familial status provisions of the MHRA. At a minimum, anti-discrimination policies will likely need to be updated to include familial status as a protected category.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on May 19, 2014, in Discrimination and Harassment and tagged . Bookmark the permalink. Leave a comment.

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