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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 16219
Experience:  Licensed Texas General Practice Attorney
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I applied for a part time position at restaurant in fl. I had

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I applied for a part time position at restaurant in fl. I had worked there before but left for personal reasons. I was interviewed and left hanging for 1 month, I did call and stop in weekly. The aassistant manager tx me with the following:Hey Holly we still haven't made a def decision but WE do have an idea of who we will prob go with for the position. I didn't want to keep you hanging! At this time we feel that we really need someone who can commint to full time in the next few months and all that comes with woring full time esp during season. I know you need to make your daughter your 1st priority and not be tied down and I totally respect that! Thanks for coming in thought it was really nice to chat with you! You should come with me and Jan to the beach sometime! I worked this position before knowing that it would become full time wor, my daughter also knew that, I had talked to her and she told me to go for it. I feel that I am being discriminated against because I am raising my 17 year old daughter, who was never a problem before and all the sudden is NOW. Can you tell me if I am Thank you

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. While this IS discrimination, that does not mean that it's illegal discrimination. Discrimination broadly means treating people different based on some internal or external characteristic. For instance, an employer that hires a college grad over a high school grad is discriminating based on education level. Or someone who hires from Harvard over the local community college is discriminating based on education source. This is one of the countless legal types of discrimination. Only illegal discrimination is illegal. And that's discrimination that violates the law. Title VII, the ADA, the ADEA, etc... all come together and say that certain types of discrimination in employment are illegal, such as race, age, religion, gender, and disability. These are the only types that are illegal. Discrimination based on any other factor, logical or not, ethical or not, is not illegal, and as such, courts would not have any basis to hear those cases.

ScottyMacEsq :

Florida is an at will employment state. Generally speaking, At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

ScottyMacEsq :

Now if it can be shown that there is discrimination against a caregiver based on one of those factors above, then there could be a case. Iintentional sex discrimination against workers with caregiving responsibilities may be proven using any of the types of evidence used in other sex discrimination cases. Title VII cases generally categorize evidence as either circumstantial or direct. Circumstantial evidence suggests that an adverse employment action was based on a protected category. On the other hand, direct evidence establishes disparate treatment on the basis of a protected category without inference or presumption.

ScottyMacEsq :

The enforcement guidance lists 10 types of evidence that may be relevant to establish the employee was subjected to unlawful discrimination:

1) Whether the employer asked female applicants, but not male applicants, whether they were married or had young children, or about their childcare and other caregiving responsibilities.
2) Whether decisionmakers or other officials made stereotypical or derogatory comments about pregnant workers or about working mothers or other female caregivers.
3) Whether the employer began subjecting the charging party or other women to less favorable treatment soon after it became aware that they were pregnant.
4) Whether, despite the absence of a decline in work performance, the employer began subjecting the charging party or other women to less favorable treatment after they assumed caregiving responsibilities.
5) Whether female workers without children or other caregiving responsibilities received more favorable treatment than female caregivers based upon stereotypes of mothers or other female caregivers.
6) Whether the employer steered or assigned women with caregiving responsibilities to less prestigious or lower paid positions.
7) Whether male workers with caregiving responsibilities received more favorable treatment than female workers.
8) Whether statistical evidence shows disparate treatment against pregnant workers or female caregivers.
9) Whether the employer deviated from workplace policy when it took the challenged action.
10) Whether the respondent’s asserted reason for the challenged action is credible.

ScottyMacEsq :

So it's possible that there is unlawful gender discrimination because of the caregiving responsibilities. But discrimination solely based upon having these caregiving responsibilities, when it's not tied to race, is legal (believe it or not). I certainly agree that it's not ethical or moral, but it is legal. Only if the true discrimination is based on race, age, religion, gender, or disability, would that be something that could be the basis of a complaint to the EEOC.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

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