Legal and Illegal Discrimination

Providers sometimes worry about treating parents differently:  

  • Can I tell a parent I don't want to care for her child just because I don't like the way she is rude to me? (Yes) 
  • Can I give one parent a discount on my rates, but not the other parents? (Sometimes) 
  • Can I put in my policies that I don't care for Jewish families because of the religious education I offer in my business? (No) 
  • Can I terminate a parent's contract because they made a complaint against me to my licensing worker? (Yes) 
  • Do I have to give parents a reason to terminate our contract or can I terminate the relationship without any reason? (You don't have to give a reason)

Sometimes it's okay to have different rules for different people and sometimes it's not. It's not always illegal to discriminate in your business. In fact, it's usually not illegal to discriminate. In general, providers can set their own rules and run their business the way they want, without fear that they are breaking the law in how they treat parents. Providers can refuse to enroll a child because the parent practices bad personal hygiene. Providers can terminate a parent because her child is bullying the other children. You are the boss of your business, not the employee of the parent. We are not recommending that providers discriminate against parents just because they can.

What type of discrimination is wrong? It is illegal to discriminate against children or parents because of race, color, gender, religion, age, disability, or national origin. Your state or local government may have added additional prohibitions against discriminating based on marital status, sexual orientation, or some other class. Check with your state attorney general's office or state Department of Human Rights for information about state laws. If you provide care for low-income families who are subsidized by the state, your state contract may also say that it's illegal to discriminate against families receiving government assistance. This means you may not be able to refuse to provide care for a parent just because she is receiving subsidized assistance from your state. Ask your state agency that regulates child care for further information. State laws can be different in the area of illegal discrimination, so check with your state attorney general's office or a lawyer if you have questions.

Those whom you cannot discriminate against are called a “protected class.” But just because a person is in a protected class does not mean that you can't discriminate against them for other reasons. (Again, we are not recommending that you discriminate.) You can discriminate against such a person as long as the reason for doing so is not because of their protected class status. In other words, you can terminate a parent who is a Catholic because she violates your contract by not paying on time, but not because she is a Catholic. You can conduct religious training with the children in your program, but can't exclude someone from your program because of their religion. You can prevent someone from coming into your program because they work for a large corporation, but you can't exclude someone because they are from Mexico.

Providers can decide not to accept infants or school-agers because of their age. Age discrimination usually only involves people over age 40 (In Minnesota it's illegal to discriminate against anyone over age 18). So, you can refuse to accept a parent who is a teen mother because she is too difficult to handle. And, of course, you can run a program that does not accept infants. You cannot refuse to care for a girl because you want the next child enrolled to be a boy, to balance out your program. Discrimination against a child or parent because of their disabilities (HIV positive, a child who uses a wheelchair, child with epilepsy, etc.) is illegal.

If you decide not to enroll a parent, the best thing to say is, “I don't think this is the best place for your child at this time.” If you try to explain yourself any further you run the risk of saying something that might cause the parent to think you are discriminating against them illegally. Many providers are tempted to say, “I'm full” or “I'm waiting to hear back from another family that I interviewed yesterday.” We don't recommend that you lie to parents. If you are caught lying (the parent sees a new ad from you in the paper the next week), then the parent may become angry and file a complaint.

Providers should always treat everyone they come into contact with in their business with respect and dignity. Just because you can discriminate against someone legally doesn't mean you should do so. If parents feel that they are not being treated fairly, they may be more likely to complain to your licensing worker, spread negative word of mouth about your program, or sue you.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities. All family child care providers, including providers exempt from state regulations must comply with the ADA.

A disability is a physical or mental impairment that limits one or more major life activities: hearing seeing, learning, speaking, and walking. Such disabilities include, but are not limited to cancer, cerebral palsy, deafness, diabetes, emotional or mental illness, epilepsy, HIV and AIDS, learning disabilities, and mental retardation.

Providers must make reasonable accommodations to include children with disabilities. What is reasonable will depend on the individual assessment of the child’s needs and the program’s ability to accommodate those needs. 

Providers cannot deny care to a child with a disability for these reasons: 

  • Child has a severe disability 
  • Provider doesn’t feel she has skill to deliver care 
  • Provider policies say she doesn’t care for children with disabilities 
  • Provider doesn’t feel comfortable dealing with certain disabilities, such as AIDS 
  • Providers must care for children with disabilities unless Offering her services to the child would impose an “undue burden” (significant  difficulty or expense)  
  • The child’s condition poses a “direct threat”
  • Removing an architectural changes isn’t “readily achievable”
  • Accommodating the child would “fundamentally alter” the nature of the program

Photo Credit: Keoni Cabral