The traditional concept of discrimination at workplace is changing. In fact there have emerged new ways of discrimination called second generation employment discrimination. The new manifestations are relational, subtle and more complex than the called first generation employment discrimination. Contemporary discrimination concept is in crisis and the strategies to prevent and eliminate emerging ways of discrimination are calling for a new approach due to its special complexity.

The ground family responsibilities discrimination belongs to new category and means discrimination against employees based on their responsibilities to care for family members. It includes pregnancy discrimination, discrimination against mothers and fathers, and discrimination against workers with other family caregiving responsibilities. It wants to remove the Maternal Wall or invisible barrier to the workplace advancement of mothers, analogous to the glass ceiling for all women, what some mothers and fathers face when want to be caregivers. The Maternal Wall refers to the hostility women experience when they return to work after having a baby. The focal point of the theory is that employers presume that a mother, particularly a mother of a young child, will have more family responsibilities than other workers and will prioritize those responsibilities over her work. The Maternal Wall typically arises at one of three points: when a woman gets pregnant; when she becomes a mother; or when she begins working either part-time or on a flexible work arrangement.

In Spain it has recently been created the new ground of discrimination by the case Constitutional Court 26/2011, March 14. The plaintiff worked at a special education’s home (autonomous community of Castilla and León). He had asked to work night shift for the school year 2007-2008 to care his two young children. The employer refused this request and the plaintiff alleged sex discrimination. The Constitutional Court holds that the employer must not refuse to accommodate an employee’s caring responsibilities. There is only one exception to this general rule: if the employer alleges important reasons of organization. The Court provides a reasonableness test which includes the number of children, their age and school situation, as well as the working situation of his wife and the potential effect that the refusal of night schedule to employee would mean to balance his work with the care of his children. Furthermore it is necessary to consider if the work arrangements are possible without cause important organizational difficulties. The case reflects the reality that men as well as women are affected by the maternal wall when they request parental leave or otherwise assume traditionally feminine family caregiving roles. The Maternal wall does not penalize people of a certain sex: it penalizes anyone who plays a certain sex role.

This new ground of discrimination is not prohibited under the European Union Law. However it is illegal under the American Law. In the United States, the work-family conflict has historically been framed as a problem for equality and antidiscrimination law. In 2007, the U.S. Equal Employment Opportunity Commission (EEOC) adopted an Enforcement Guidance on Family Responsibilities Discrimination.