Since Congress enacted Title VII, the proportion of women who work outside the home has dramatically increased. The rise has been especially dramatic for mothers of young children, The total amount of time that couples with children spend working also has increased. Despite these changes, women continue to be many families’ primary caregivers. Workers’ responsibilities for family caregiving are not limited to childcare: as the Baby Boomer generation ages, an increasing proportion of caregiving is devoted the elderly. As with childcare, women are disproportionately responsible for caring for the elderly, including parents, spouses, and other relatives. Many workers also are responsible for caring for family members with disabilities.
What is Family Responsibilities Discrimination?
Family responsibilities discrimination (“FRD”) is an umbrella term for workplace discrimination based on biases about how employees with family caregiving responsibilities will or should act. For example, employers may assume that new parents (typically mothers) will not be as committed to their jobs or as reliable as they were before they had children. Or an employer might believe that mothers “should” be home with their children and may give them assignments that do not require travel or late hours. The discrimination arises because the employer’s actions are based not on the individual employee’s performance or own desires, but rather on stereotypes.
Perhaps the most common form of FRD is known as “maternal wall” bias. Maternal wall bias is bias against women because they are mothers. Maternal wall bias tends to be triggered at one of three moments when maternity becomes salient –- when a woman announces her pregnancy (or begins to appear pregnant), when she returns from maternity leave, or when she switches from full-time work to a flexible work arrangement. Maternal wall bias is also implicated in the common “lack of fit” pattern of FRD, which involve an employer’s assumption that a particular -– usually high-powered –- job is inappropriate for a mother. The employer typically channels the mother toward more “suitable” employment roles, typically into jobs with little or no opportunity for advancement.
While there is no federal statute that expressly protects workers from adverse employment actions based on their family caregiving responsibilities, there are several federal statutes that can be used to protect these workers. The most commonly used statutes is Title VII of the Civil Rights Act of 1964 (“Title VII”). The Family and Medical Leave Act (“FMLA”) also provides key protections, and other statutes, such as the Employee Retirement Income Security Act (“ERISA”), the Americans with Disabilities Act (“ADA”), the Equal Pay Act (“EPA”), and Title IX have also been successfully used to protect family caregivers in the workplace. State and local laws and common law causes of action also play a part.
Employees seeking redress for FRD have occasionally made innovative arguments under statutes typically used for other purposes. One example is an action for tortious interference with business relations where a supervisor in a large company interfered with a caregiver’s ability to do his or her job, such as withholding resources needed by a salesperson to meet a quota. Additionally, in situations where women have been fired for taking maternity leave at companies that are too small to fall within the ambit of Title VII or state anti-discrimination laws, wrongful discharge actions have been brought.
Title VII is the statute under which most FRD cases are brought. FRD cases have embraced all the various types of actions cognizable under this statute: disparate treatment (e.g. holding open the job of a man who is recovering from a heart attack but firing a woman because she takes maternity leave); disparate impact (e.g. a company policy that prohibits new employees from taking time off for any reason disproportionately impacts pregnant women and new mothers); harassment (e.g. snide remarks, heightened scrutiny of hours and work performance aimed only at the employee taking family responsibility leave of some kind, and unreasonable work demands that occur after leave is taken); failure to promote (e.g. women without children and men with children are considered for promotion, but not women with children)’ and retaliation (e.g. mother’s loss of a flexible schedule after she complains about a discriminatory action). Another cause of action under Title VII is discrimination based on gender stereotypes. Under this theory, plaintiffs may be able to sue their employers for making personnel actions based on stereotyped assumptions about the employee (e.g. not promoting a mother because the employer assumed she would not want to relocate her children so she could take the new position). In all cases, it is essential to link bias against parents to gender so as to bring the bias within the ambit of Title VII.
Some FRD claims under Title VII are based on proof that an employer took an adverse employment action against an employee or applicant because of the employer’s belief that a woman or man should occupy specific social roles. For example, in one case a male interviewer informed a female applicant that he had chosen an unmarried, childless male candidate because he would be more “available” and “dedicated,” and he did not think the plaintiff could handle both her family responsibilities and the demands of the job. Coble v. Hot Springs School Dist. No. 6, 682 F.2d 721 (8th Cir. 1982). In finding for the plaintiff, the court held that the interviewer had “unfairly emphasized Coble’s family responsibilities.” Id. at 726. Courts have also ruled for the plaintiff where the defendant-employer did not consider the plaintiff-mother for a position requiring travel because he believed “that working mothers cannot be both good mothers and good workers,” Trezza v. Hartford, Inc., No. 98 CIV. 2205, 1998 WL 912101, at *2 (S.D.N.Y. Dec. 30, 1998), and where an employer terminated a woman’s employment after she gave birth, stating that her “place was at home with her child,” and she could “no longer [be] dependable” after the child’s birth since “babies get sick sometimes and [she] would have to miss work to care for her child.” Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502, 503 (Va. 1997)
Sex discrimination related to family responsibilities can also take the form of heightened scrutiny or negative evaluations, especially of new mothers. In 2005, the Fourth Circuit upheld a jury’s verdict in favor of a lawyer who began receiving negative evaluations from her supervising partner and began to be called rude names by him after he learned that she had a small child at home. When she raised discrimination claims within the law firm, she was terminated. Gallina v. Mintz, Levin, Cohn, Frris, Glovsky & Popeo, 123 Fed. Appx. 558 (4th Cir. 2005). In another case, an employee who had received outstanding reviews and incentive bonuses for her work suddenly became subject to extensive scrutiny of her work and negative comments about her work ethic, eventually leading to termination, when she took leave due to pregnancy complications. Rathbone v. CVS Pharmacy, Inc., No. 3:03CV1478(DJS), 2006 U.S. Dist. LEXIS 30216 (D. Conn. May 12, 2006). The court refused to grant summary judgment to defendant, holding that evidence the plaintiff adduced demonstrating that others who had not followed company rules to the letter were not similarly disciplined was sufficient to survive the motion. Id. at *19. Significantly, the court stated that a reasonable jury could find that highly critical comments of the plaintiff – including about the “convenient” timing of her pregnancy that would force her to miss the holiday rush – before and during her leave by the ultimate decision maker demonstrated discriminatory animus towards her and established a significant nexus between that hostility and the adverse employment action. Id. at *20-21.
An area of increasing prominence in FRD litigation is gender stereotyping in violation of Title VII. Recently, the Second Circuit addressed discrimination based on stereotypes of motherhood in Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 121 (2d Cir. 2004). The plaintiff, Elana Back, was a school psychologist who was denied tenure, after becoming a mother, by supervisors who allegedly made comments to her such as that it was “not possible for [her] to be a good mother and have this job” and that they “did not know how she could perform her job with little ones.” Id. at 115. The court ruled that making stereotypical assumptions about a mother’s commitment to her job is sex discrimination, even if the mother does not have evidence that similarly situated fathers were treated differently. Id. at 113. Other stereotyping cases have resulted in similar holdings. For example, in Troy v. Bay State Computer Group, Inc., 141 F.3d 378 (1st Cir. 1998), the Court of Appeals held that a supervisor had impermissibly acted on the stereotypical judgment that pregnant women are poor attendees when the employer discharged a woman who had taken leave for illness unrelated to her pregnancy. Similarly, a Court of Appeals upheld a jury verdict for the plaintiff where her supervisor admitted that he did not consider recommending her for a managerial position because he did not think she would want to relocate her family. Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), aff’d on other grounds, 383 F.3d 580 (7th Cir. 2004).
“Sex-plus” or “gender-plus” is the term for discrimination based not only on a person’s sex, but also on some other factor, such as parental or marital status. The concept of sex-plus discrimination has been explained in the following way, which clarifies that the discrimination must be based ultimately on sex, not on the “plus” characteristic:
When one proceeds to cancel out the common characteristics of the two classes being compared ([e.g.] married men and married women) . . . the cancelled-out element proves to be that of married status [the “plus” factor], and sex remains the only operative factor in the
Coleman v. B-G Maint. Mgmt. of Colorado, Inc., 108 F.3d 1199 (10th Cir. 1997) (quoting Lex K. Larson, Employment Discrimination § 40.04, at 40-12 (2d ed. 1996)). The Supreme Court first recognized sex-plus discrimination in Phillips v. Martin Marietta Corp. , 400 U.S. 542 (1971). In Martin Marietta, the Court held impermissible an employer’s policy of rejecting applications from women with preschool-age children while it accepted applications from men with children of the same age.
Courts have disputed whether there must be an actual similarly-situated employee of the opposite sex who does not suffer discrimination (a “comparator”), or if stereotyping based on the “plus” characteristic is sufficient, since Martin Marietta. Some courts have held that comparator is not necessary. See Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (a male comparator was not necessary where the sex discrimination was based on a stereotypical assumption that women who are mothers will not be sufficiently committed to their jobs); McGrenaghan v. St. Denis School, 979 F.Supp. 323, 327 (E.D. Pa. 1997) (a “sex-plus” discrimination action to survived summary judgment where the plaintiff, a mother with a disabled child, was replaced by a woman without disabled children, suggesting that the stereotype that mothers are not as dedicated to their jobs as non-mothers was sufficient to make out a prima facie case for discrimination.)
But other courts have held that a comparator of the opposite sex is required in order to make out a prima facie case of discrimination. For example, a number of District Courts have held that a female plaintiff with young children must show that men with young children had been treated differently from her. See Philipsen v. University of Michigan Bd. of Regents, No. 06-CV-11977-DT, 2007 WL 907822, at *9 (E.D. Mich. Mar. 22, 2007), Fuller v. GTE Corporation/Contel Cellular, Inc., 926 F.Supp. 653 (M.D. Tenn. 1996). In sum, while some courts may find it sufficient in the context of gender stereotyping and other kinds of FRD based on sex to show that the person was discriminated against because of his or her sex, the employee’s case is significantly stronger in all courts where there is a comparator of the opposite sex.
Family And Medical Leave Act
Leave-related FRD claims may be also brought under the FMLA. If, for example, the employee has taken FMLA-protected leave, discrimination that occurs after the leave can be redressed through the anti-retaliation provisions of the FMLA. Not all employees are protected by the FMLA, however, because they have not worked at their company for a sufficient period or because their employer does not meet the 50-employee threshold for FMLA coverage. In such cases, employees may look to state law counterparts to the FMLA that may have lower thresholds for protected leave. FMLA causes of action also include denial of leave, particularly in the case of men wishing to take leave to care for a newborn, and interference with leave, such as asking a new mother to work during maternity leave or asking her to return from leave early.
Interference with leave may happen before or concurrent with the requested leave in violation of the FMLA’s anti-interference provision, 29 U.S.C. § 2615. For example, in Glunt v. GES Exposition Services, Inc., 123 F. Supp. 2d 847 (D. Md. 2000), the defendant-employer demoted the plaintiff one month before her scheduled maternity leave, apparently to reduce the amount she would receive under the company’s paid leave policy. Id. at 870. The District Court disagreed:
‘[i]nterfering with’ the exercise of an employee’s rights … includes … not only refusing to authorize FMLA leave, but discouraging an employee from using such leave [and] manipulation by a covered employer to avoid responsibilities under FMLA.” 29 C.F.R. § 825.220(b). “Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). Therefore, where an adverse employment action is influenced by the taking of family leave, the employer interferes with that employee’s exercise of their rights under the FMLA.
Id. at 870-71.
As with Title VII, gender stereotyping plays a role in claims brought under the FMLA. Hopkins’s progeny include a 2003 Supreme Court case explicitly recognizing how gender stereotypes of caregiving lead to discrimination in the workplace for both women and men, Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003). Though the case was primarily about whether FMLA applied to states, the Court took the occasion to explore the purpose of the FMLA. In Hibbs, Chief Justice Rehnquist stated:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis . . . [T]he FMLA is narrowly targeted at the faultline between work and family –- precisely where sex-based overgeneralization has been and remains strongest.
Id. at 736, 738. Such language provides a promising springboard for employees seeking to bring FRD claims under the FMLA.
Other FRD Statutes
Americans with Disabilities Act
A number of successful FRD cases have been brought under the Americans with Disabilities Act. For example, a District Court found that a mother made out a prima facie claim of ADA discrimination where she was not hired by a company taking over her firm, allegedly because the employer knew that she had an infant daughter with serious health problems. Abdel-Khalek v. Ernst & Young, No. 97 CIV. 4514 JGK, 1999 WL 190790, at *6 (S.D.N.Y. 1999).In reaching its holding, the court relied on the “association” clause of the ADA, which says that the word discriminate includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Id. at *3 (quoting 42 U.S.C. §12112(b)(4)).In a similar case two years earlier, the District Court denied summary judgment against a mother of a disabled child relying on the association clause of the ADA. McGrenaghan v. St. Denis School, 979 F.Supp. 323 (E.D. Pa. 1997). In McGrenaghan, a full-time teacher in the Archdiocese of Philadelphia was transferred from full-time teaching status to half-time teaching and half-time resource aide status. While there was no change in pay, the court held that the difference in duties could be an adverse action in violation of the ADA. Other cases rely not on the association clause, but rather on the fact that the employer views a person as disabled because of pregnancy or other family-related conditions. For example, in one case a mother brought an ADA discrimination claim where she was terminated allegedly because her employer regarded her pregnancy-related conditions, such as nausea, dizziness, and cramping, as a disability. Cerrato v. Durham, 941 F. Supp. 388, 393 (S.D.N.Y. 1996). The court denied the defendants’ motion to dismiss, specifically noting that the employer granted similar days off to other incapacitated individuals. Id. at 394
The Employee Retirement Income Security Act
Though primarily designed to protect employees’ pensions and benefit plans, ERISA has proven useful as a vehicle for remedying family responsibility discrimination. For example, in one case a mother was hired but discharged the next day -– before she started working -– when her employer discovered that her infant child had been born several months earlier with hydrocephalus. Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991). The plaintiff’s employer admitted that it terminated her so that its benefit plan would not be burdened with the prospective high medical costs for her child. Id. at 997. The court rejected defendant’s argument that Fleming was not a “participant” in the benefit plan for purposes of ERISA and upheld the District Court’s finding that her employer discriminated against her in violation of ERISA. Id. at 998. In a more recent District Court case, an employer’s summary judgment motion was denied where a pregnant woman was terminated just hours after requesting maternity leave and associated benefits. Grew v. Kmart Corp. of Ill., Inc., No. 05 C 2022, 2006 U.S. Dist. LEXIS 6994, at *25-27 (N.D. Ill. Feb. 26, 2006).
Pregnancy Discrimination Act
The Pregnancy Discrimination Act is an amendment to Title VII specifically designed to prevent a common form of FRD. The PDA has been used to protect women who are pregnant or on maternity leave, as well as to combat discrimination that arises because a woman might become pregnant in the future.
If you believe that you have been subjected to family responsibilities discrimination, contact the experienced attorneys at Katz Banks Kumin for an evaluation of your case with no further obligation.