The Parent Trap: Can an Inconvenient Work Schedule be Employment Discrimination?



Countless parents have wrestled with the competing schedules of raising their children while simultaneously complying with their work schedules. Some employers are more willing than others to work to create a flexible schedule for their employees who have childcare needs. However, when an employer isn’t as willing to cooperate with the employee’s scheduling wishes, does this constitute employment discrimination?

Woman Claims Undue Hardship in Denial of Shift Change

A recent federal case in New York state discusses when a scheduling change creates an adverse employment action because of childcare needs.

In Gibson v. N.Y. State Office of Mental Health, 2018 BL 144263 (N.D.N.Y. Apr. 24, 2018), an employee of the New York Office of Mental Health was granted legal custody of her grandsons. After she obtained legal custody she requested a change from the night shift to the day shift in order to better care for her grandchildren. She claimed that the office discriminated against her because of her age and sex when it denied her request for a shift change to accommodate her childcare needs.

Is the Failure to Change a Schedule an Adverse Action Because of Childcare Needs?

In certain cases, such as in Forsythe v. New York City Dept. of Citywide Administrative Servs., 733 F. Supp. 2d 392 (S.D.N.Y. 2010), the courts have found that a schedule change was an adverse employment action because of childcare needs. These cases all involved circumstances where the employees were subjected to a shift change and it then caused unexpected difficulties with childcare routines.

Denial of Schedule Change Isn’t an Adverse Employment Action

What makes the Gibson case interesting is that the employee claimed that she was discriminated against because her schedule stayed the same as before, and not because it changed as in these other cases.

In other words, although the employee’s lifestyle outside of work changed when she gained legal custody of her grandchildren, she was simply required to work the same shift that she had been working before the request was denied. While she found her night shift to be inconvenient, she was never subjected to a shift change.

The court found that the office’s denial of her request for the shift change wasn’t an adverse employment action because the terms, privileges, and conditions of her employment didn’t change. Her subjective belief that the denial disrupted her ability to care for her grandchildren didn’t show that her employer objectively caused that negative effect.

Scheduling Needs in the Future

While the denial in the Gibson case wasn’t discrimination, it is easy to understand why the employee wanted a change in her schedule when she took on the responsibilities of becoming a legal guardian.

Working parents and guardians may always struggle to juggle the demands of work and childcare needs, although there may be hope for more flexibility in the future. In the digital era many employees may be able to better balance the duties of employee and parent through options such as teleworking if their employer and line of work permits it.

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