2013 Labor and Employment Seminar
Mothers in the Workplace:
The Legal Battle to
Eliminate Sex Stereotyping
10:30 a.m.-11:00 a.m.
Presented by
Melissa Hasso
Sherinian & Hasso Law Firm
3737 Woodland Ave., Suite 630
West Des Moines, Iowa 50266
Phone: 515-224-2079
Friday, November 15, 2013
MOTHERS IN THE WORKPLACE: THE LEGAL BATTLE TO ELIMINATE SEX STEREOTYPING Melissa C. Hasso Sherinian & Hasso Law Firm 3737 Woodland Ave., Suite 630 West Des Moines, Iowa 50266 Telephone: (515) 224‐2079 Facsimile: (515) 224‐2321 1. Overview of the Evolution of Stereotyping Women in the Workplace A. Laws prohibiting employment of women between 10 p.m. and 6 a.m. (1927 N. Y. Laws, c. 453; 1930 N.Y. Laws, c. 868; Act No. 466, Pa. Laws 1913) (both repealed in 1969) B. Equal Pay Act of 1963, 29 U.S.C. 206(d)(1) (prohibiting sex discrimination by an employer in the payment of wages for equal work) (to remedy the common problem of wage structures “based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same” S. Rep. No. 176, 88th Cong., 1st Sess., 1 (1963)) C. Phillips v. Martin Marietta, 400 U.S. 542 (1971) (holding that an employer violates Title VII when it refuses to hire women with young children, while hiring men with young children) D. Cleveland Bd. of Ed. V. LaFleur, 414 U.S. 632 (1975) (holding it is unconstitutional for a public employer to require women to take unpaid maternity leave after the first trimester of pregnancy because of a conclusive presumption that pregnant women are no longer able to work) E. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) (Airline stewardess filed suit under Title VII after being terminated pursuant to airline’s “no‐marriage” rule for females, which did not apply to male stewards. The court held the policy violates Title VII. It rejected the airlines’ justification that it imposed the requirement after it received complaints from husbands about their wives’ work schedules. It also rejected arguments that marriage affected a woman’s ability to “create the proper psychological climate of comfort, safety, and security” of passengers and that passengers preferred single stewardesses. F. In re Consolidated Pretrial Proceedings In the Airline Cases, 582 F.2d 1142 (7th Cir. 1978) (Female cabin attendants challenged airline policy of requiring females who become mothers to resign or accept ground duty positions while not imposing similar restrictions on their male counterparts who become fathers. TWA argued that its no‐motherhood policy was justified as a “bona fide occupational qualification” (“BFOQ”) because (1) mothers of young children would have unacceptably high rates of absenteeism; (2) mothers might be subject to overriding domestic concerns that would make them questionable risks for competent performance in times of crisis, and (3) mothers returning from maternity leaves would require expensive retraining. The Seventh Circuit rejected the policy as “discriminatory on its face,” noting that TWA’s argument was “speculative and relies heavily on stereotypical assumptions, a posture which is anathema to the maturing state of Title VII analysis.”) 2 G. Califano v. Westcott, 433 U.S. 76 (1979) (invalidating program that provided unemployment benefits to families with unemployed fathers, but not to those with unemployed mothers; unconstitutional due to presumption that fathers are primary breadwinners while a mother’s employment is secondary) H. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) recognizes that requiring a woman to conform to gender stereotypes (dress femininely, wear makeup and jewelry, etc.) violates Title VII; “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group” I. United Auto Workers v. Johnson Controls, 499 U.S. 187 (1991) (Title VII forbids employers from adopting fetal protection policies preventing fertile women from working in jobs that entail exposure to toxins that may harm a fetus; women must be allowed to make their own decisions about pregnancy and dangerous work; as long as they can perform their jobs the employer may not exclude them from work based on an expressed concern for children they might conceive). J. Nevada Dep’t. of Human Resources v. Hibbs, 538 U.S. 721 (2003) (The United States Supreme Court took judicial notice of the stereotype that women cannot balance family and work responsibilities. The Court concluded that stereotypes of this sort were strong and pervasive enough to justify prophylactic congressional action, in the form of the Family and Medical Leave Act: “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.” 3 2. Examples of Other Types of Sex Stereotyping Claims A. Failure to Comply with Sex Stereotypes i. Woman Not Feminine Enough 1. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (denying partnership position to a woman because she was “macho” and needed to walk, talk, and dress more femininely, wear makeup and jewelry, and style her hair, was sexually discriminatory) 2. Lewis v. Heartland Inns of Amer., L.L.C., 591 F.3d 1033 (8th Cir. 2010) (reversing summary judgment for employer and finding a supervisor’s criticism of the plaintiff for lack of “prettiness” and the “Midwestern girl look” before terminating her was evidence of wrongful sex stereotyping) ii. Woman Not Manly Enough 1. Van Hul v. City of Dell Rapids, 462 F.Supp.828 (D. S. Dak. 1978) (successful female liquor store manager terminated because mayor wanted a man in the job. A bench trial resulted in a verdict for the plaintiff. The court noted that “[t]he sexual stereotypes of the weak woman and the husky man were at the heart of the discussions surrounding plaintiff's termination in the instant case. The mayor stated that former manager Walker was a ‘big man and could handle things’. He further stated that a man in the bar could help carry up supplies and do the rough work. He felt a lot of respect for ladies, according to his testimony, but stated that a man ‘would create good feeling’. Much trial testimony conflicted as to whether the mayor had stated ‘that Job needs a man’ or ‘that Place needs a man’ when discussing plaintiff's employment situation.”) iii. Man Not Manly Enough 1. Seim v. Three Eagles Communications, No. 09‐CV‐3071‐DEO, 2011 WL 2149061 (N.D. Iowa June 1, 2011) (terminated radio talk show host survived summary judgment on state and federal law perceived sexual orientation claims where supervisor made gender stereotyping comments about plaintiff’s sexuality) 2. EEOC v. Boh Brothers Construction Co., L.L.C., No. 11‐30770, 2013 WL 5420320 (5th Cir. Sept. 27, 2013) (En banc decision reinstating jury verdict in plaintiff’s favor where plaintiff, a member of an all‐male construction crew, alleged sex stereotyping same‐sex sexual harassment under Title VII; harassment based on perception that he was not stereotypically masculine) 4 3. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (Reversing court’s finding in favor of defendant on restaurant server plaintiff’s sex stereotyping where plaintiff was harassed by male co‐workers and supervisors because he did not meet their views of a male stereotype) i. Man Too Manly?? 1. Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) (reversing summary judgment for employer on male employee’s Title VII sex stereotyping claim, Second Circuit held that it was reasonable to infer a discriminatory state of mind from supervisor’s remark that men have a propensity to sexually harass women, made during the same phone call in which he pressured the plaintiff to resign. Termination occurred in response to complaint from a female employee that the plaintiff had sexually harassed her, and no investigation was done; employer appeared to have relied solely on a sex stereotype) B. Family Responsibility Discrimination (“FRD”): Discrimination against workers based on their family caregiving responsibilities for children, elderly parents, or ill spouses and partners; includes pregnancy discrimination and discrimination against women when they become mothers, but also discrimination against men who seek to take on a larger family caregiving role for young children, elderly parents, or ill spouses than traditional gender stereotypes for men envision. Examples include assigning a mother to less important, “mommy track” work based on the assumption that she will be less committed to her work, or retaliating against a male employee who takes time off to care for a child or other family member.1 4. Common Stereotypes of Working Mothers and Examples of Prohibited Conduct2  Assuming female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast‐paced environment;  Assuming that female workers who work part‐time or take advantage of flexible work arrangements are less committed to their jobs than full‐time employees;  Assuming that male workers do not, or should not, have significant caregiving responsibilities; 1
CENTER FOR WORKLIFE LAW, ISSUE BRIEF: CURRENT LAW PROHIBITS DISCRIMINATION BASED ON FAMILY RESPONSIBILITIES & GENDER STEREOTYPING (2006), available at http://uchastings.edu/site_files/WLL/IssueBriefFRD.pdf 2
See Stephanie Bornstein, “Poor, Pregnant and Fired: Caregiver Discrimination Against Low‐Wage Workers,” Center for WorkLife Law, University of California, Hastings College of the Law, (2011), p. 606 5 
Assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work;  Assuming that female workers who are caregivers are less capable than other workers; and  Assuming that pregnant employees are less reliable than other workers. Examples of conduct that exhibits a discriminatory attitude toward working mothers include:  Asking female applicants and employees, but not male applicants and employees, about their childcare responsibilities;  Making stereotypical comments about pregnant workers or female caregivers;  Treating female workers without caregiving responsibilities more favorably than female caregivers;  Steering women with caregiving responsibilities to less prestigious or lower‐paid positions;  Treating women of color who have caregiving responsibilities differently than other workers with caregiving responsibilities due to gender, race and/or national origin‐based stereotypes;  Treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities;  Denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities; and  Providing reasonable accommodations for temporary medical conditions but not for pregnancy 5. Stereotyping Working Mothers: Claim Basics. Employers may not discriminate based on sexual stereotypes. “[W]e are beyond the day when an employer could evaluate employees by assuming . . . they matched the stereotype associated with their group.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); see also Courtney v. Amer. Nat. Can Co., 537 N.W.2d 681, 685 (Iowa 1995) (“Moreover, an employer may not base its employment decisions on ‘prejudice, stereotypes, or unfounded fear.’”). A plaintiff can therefore recover from the defendant if she can prove that she was the victim of such a stereotype. See Nelson v. Knight, 834 N.W.2d 64 (Iowa 2013) (“It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination”) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 at 251). Generally, sex stereotyping claims in Iowa will be brought under Title VII of the Civil Rights Act of 1964, 28 U.S.C. § 2000e et seq. and the Iowa Civil Rights Act, Iowa Code section 6 216.6,3 both of which prohibit discriminatory treatment in employment on the basis of sex. At the summary judgment stage, the plaintiff may prove her claim in either of two ways. First, she may show direct evidence of a specific link between the alleged stereotype and the adverse employment action. Ajouga v. Adventure Lands of America, Inc., 2010 WL 3503535, at *2 (Iowa Ct. App. 2010). Alternatively, she may prove her claim by using the burden‐shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (describing the distinction between the two methodologies and the meaning of “direct evidence”). If the plaintiff presents direct evidence that stereotypical assumptions were a motivating factor in the termination decision, such as an admission that gender was the reason for the action, the three‐part McDonnell Douglas framework does not apply, and the case should go to the jury. See Griffith, supra. In the alternative, to establish a prima facie case under the McDonnell Douglas framework, a plaintiff must show that “(1) she was a member of a protected group; (2) she was qualified to perform the job; (3) she suffered an adverse employment action; and (4) circumstances permit an inference of discrimination.” Lewis, 591 F.3d at 1038, citing Bearden v. Int’l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008). Such a showing creates a presumption of unlawful discrimination, requiring the defendant to produce a legitimate nondiscriminatory reason for its employment action. Id. The burden then returns to the plaintiff to prove that the defendant’s proffered reason for terminating her is pretextual. Id. Stereotypical attitudes violate Title VII (and, therefore, the Iowa Civil Rights Act) if they lead to an adverse employment decision. The seminal federal stereotyping case is Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In Price Waterhouse, the United States Supreme Court recognized that denying a partnership position to a woman because she was “macho” and needed to walk, talk and dress more femininely, wear makeup and jewelry, and style her hair, was sexually discriminatory. Id. at 235. Sex stereotyping based on motherhood is “the persistent ‘fault line between work and family – precisely where sex‐based overgeneralization has been and remains strongest.’” Back, 365 F.3d at 113, quoting Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S. Ct. 1972, 1983, 155 L. Ed. 2d 953 (2003). In Hibbs, supra, the United States Supreme Court took judicial notice of the stereotype that women cannot balance family and work 3
When interpreting discrimination claims under Iowa Code Chapter 216, Iowa courts turn to federal law, including Title VII of the 1964 United States Civil Rights Act. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1, 7 (Iowa 2009), citing Bd. of Supervisors v. Iowa Civil Rights Comm’n, 584 N.W.2d 252, 256 (Iowa 1998) (“In deciding gender discrimination disputes, we adhere to the Title VII analytical framework . . .”). 7 responsibilities. There, “the Court concluded that stereotypes of this sort were strong and pervasive enough to justify prophylactic congressional action, in the form of the Family and Medical Leave Act: 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. Back, 365 F.3d at 121, quoting Hibbs, 538 U.S. at 737. “Hibbs makes pellucidly clear . . . that, at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender‐based . . . Hibbs explicitly called the stereotype that ‘women’s family duties trump those of the workplace’ a ‘gender stereotype.’” Id. (Emphasis in Back). The Supreme Court in Price Waterhouse, 490 U.S. at 251, addressed the legal relevance of sex stereotyping to Title VII’s prohibition against discrimination “because of sex.” The court stated, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251. The court therefore held that when an employer acts on the basis of sex stereotypes, that employer has made an employment decision “because of sex.” Id. at 250. “The principle of Price Waterhouse . . . applies as much to the supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype.” Back, 365 F.3d at 119, citing Weinstock v. Columbia Univ., 224 F.3d 33, 44‐
45 (2d Cir. 2000) (additional citations omitted). 8 6. Working Mothers Stereotypes: Case Samples A. Phillips v. Martin Marietta, 400 U.S. 542 (1971) (holding that an employer violates Title VII when it refuses to hire women with young children, while hiring men with young children; summary judgment improper; remanded for “fuller development of the record”) In 1966, Ida Phillips applied for a job as an assembly trainee with Martin Marietta. She was told that the company was not accepting job applications from women with pre‐
school aged children. However, the company did accept applications from men with pre‐school aged children. At the time she applied, 70‐75% of the applicants were women; 75‐80% of those hired for the position were women. The Fifth Circuit Court of Appeals affirmed summary judgment for the employer, as the statistics showed there was no question of bias against women. The Supreme Court disagreed, holding that Section 703(a) of the Civil Rights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their sex. The Court of Appeals erred in reading this section as permitting one hiring practice for women and another for men – each having pre‐school aged children. However, the Court went on to state, “The existence of such conflicting family obligations, if demonstrably more relevant to job performance for a woman than for a man, could arguably be a basis for distinction” under the Act, “But that is a matter of evidence tending to show that the condition in question “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” It remanded the case for “fuller development of the record.” In his concurrence, Justice Marshall disagreed that an employer could ever establish that being a woman without young children was a “bona fide occupational qualification:” “Certainly,” he wrote, “an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to insure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with. But the Court suggests that it would not require such uniform standards. I fear that in this case . . . the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination. Congress, however, sought just the opposite result . . . Even characterization of the proper domestic roles of the 9 sexes were not to serve as predicates for restricting employment opportunity. The exception for a “bona fide occupational qualification” was not intended to swallow the rule.” B. Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st. Cir. 2009) (Reversing summary judgment for Defendant) (gender discrimination claim under Title VII for denial of promotion) Laurie Chadwick was a long‐time employee of WellPoint insurance company. After one promotion and nine years with the company, Chadwick’s supervisor encouraged her to apply for another promotion. She had excellent performance reviews, receiving a 4.40 out of a possible 5.00 on her last review, and believed she was a frontrunner for the job. She also happened to be the mother of an eleven year‐old son and six year‐old triplets in kindergarten. Three (female) managers interviewed Chadwick and the other finalist (female). They selected the other applicant. Chadwick alleged WellPoint denied her the promotion based on the sex‐based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations. Supporting evidence:  More Qualified. Chadwick had held her position 7 years and most recent performance rating was 4.40. The other woman held her position (same as Chadwick) 1 year and had a 3.84 performance rating.  Comments. 1. 2 months before interview: E‐mail from decisionmaker: “Oh my – I did not know you had triplets. Bless you!” 2. During interview: “Laurie, you are a mother. Would you let your kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?” 3. Reasons given for not receiving promotion:  “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.”  “If [the three interviewers] were in your position, they would feel overwhelmed.” 10 
Told one day she would look back and say “it’s a good thing that that opportunity didn’t work out because I’m happier with this down the road.” The district court granted summary judgment, complaining that the decisionmaker did not refer explicitly to women, as opposed to caregivers generally. The First Circuit rejected this requirement, noting that a reasonable jury could determine that a sex‐
based stereotype was behind the comments. It also stressed the importance of the comment, “It was nothing you did or didn’t do,” as “the essence of employment discrimination is penalizing a worker not for something she did but for something she simply is.” The Court concluded, “A reasonable jury could infer from Miller’s explanation that Chadwick wasn’t denied the promotion because of her work performance or her interview performance but because Miller and others assumed that as a woman with four young children, Chadwick would not give it all to her job.” C. Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107 (2d Cir. 2004) (Affirming in part, vacating and remanding in part summary judgment for defendants) (gender discrimination claim under 42 U.S.C. § 1983 for denial of tenure) Elena Back was an elementary school psychologist. In her first two years there, she received “outstanding” and “superior” ratings in every category but one, which was “average.” In her second year, she took a 3‐month maternity leave. Upon return, all performance feedback and evaluations were excellent. She alleged that discriminatory treatment emerged when she approached tenure. Her supervisor (female) began making comments:  inquired as to how she was “planning on spacing her offspring”  “Please don’t get pregnant until I retire”  “Wait until [your son] is in kindergarten to have another child”  Told her she was expected to work until 4:30 every day, and asked, “What’s the big deal. You have a nanny. This is what you [have] to do to get tenure.” When Back replied that she does work those hours, she reassured Back there was no concern about her job performance.  “Maybe you should reconsider whether you could be a mother and do this job” 11  Told her she and Principal (also female) were concerned that if Back received tenure, “she would work only until 3:15 p.m. and they did not know how she could possibly do this job with children”  Told her that if her family was her priority, this was not the job for her  “This is perhaps not the job or the school district for you if you has ‘little ones,’ and that it is not possible for you to be a good mother and have this job”  Remarked that it would be harder to fire her if she had tenure and wondered “whether your apparent commitment to your job is an act”  Told her once she obtained tenure, she would not show the same level of commitment because she had little ones at home  Expressed concern about her child care arrangements (even though they did not conflict with school assignments)  Stated they wanted another year before tenure decision to assess the child care situation The Supervisor and Principal claimed they did not recommend Back for tenure because of performance issues; she had difficulties in planning and organization; and she had not improved after warnings. The district court granted summary judgment for the school district, holding (a) the Circuit had not held that a “sex plus” claim can be brought under §1983, (b) the comments were “stray remarks,” and (c) Back had not proven the reasons given for not granting tenure were pretextual. In reversing on appeal, the Second Circuit noted that “it is the law . . . that ‘stereotyped remarks can certainly be evidence that gender played a part’ in an adverse employment decision . . . “The principle of Price Waterhouse, furthermore, applies as much to the supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype.” “. . . [I]t takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.” Thus, a plaintiff need not demonstrate that the defendants treated similarly situated men differently. 12 The defendants argued this was a “gender plus parenthood” case, thereby implying that such stereotypes cannot, without comparative evidence of what was said about fathers, be presumed to be “on the basis of sex.” The Court disagreed, citing Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003): “Where stereotypes are considered the notion that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender‐based. Hibbs explicitly called the stereotype that ‘women’s family duties trump those of the workplace’ a ‘gender stereotype.’” D. Nilsa Santiago‐Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) (Affirming in part, reversing in part summary judgment for defendant and remanding) (sex discrimination and retaliation claim under Title VII and Puerto Rican law) Santiago‐Ramos was the only female among this telecommunications company’s four high‐level executives. She had one child and planned to have another. During her brief 89 days of employment, the following comments were made by the company president (male) and others:  When she started working, she was directly asked about her ability to balance work and family obligations  The President (male) asked her whether it was possible for her to handle simultaneously her job, child care, and marital responsibilities  He asked her several times how her husband was managing since she was not home to cook for him  Two weeks before termination, the Senior VP asked her how well her work was proceeding in light of her child. She said it was going well and that she planned to have a second child within several years. He responded that having another child was a lot of work and questioned whether she could perform her job effectively after having a second child. The President also created a profile of people not to hire during a job fair, which included married women and women with children. Santiago‐Ramos objected to it. The President told her that the profile was “nothing against you,” but he “preferred unmarried, childless women because they would give 150% to the job.” Also, comments were made to a secretary on maternity leave that she should not have become pregnant so soon after joining the company and she would likely be fired as a result. 13 On Santiago‐Ramos’ 89th day of employment, and after never receiving any negative feedback about her performance, she was dismissed without explanation. In the lawsuit, the company claimed there were performance problems, her “general attitude,” and a “lack of commitment.” The individual who typed up a memo stating the termination reasons testified that the memo was drafted only after Santiago‐Ramos initiated legal proceedings against the company. The district court granted the company’s motion for summary judgment. In reversing that decision, the First Circuit noted that discriminatory comments were made by key decisionmakers or those in a position to influence the decision. They specifically asked Santiago‐Romas about her ability to balance current work and parental responsibilities just two weeks before her dismissal, providing circumstantial evidence about the pretextual nature of the nondiscriminatory reasons for her dismissal. The trial court had characterized all of these comments as “stray remarks.” The First Circuit also pointed out that at the summary judgment stage, “we cannot weigh the credibility of witnesses making these comments and must assume they were made as stated.” Santiago‐Romas’ retaliation claim was based on her voicing opposition to the President’s discriminatory “do not hire” policy that included pregnant women and women with children. The court granted summary judgment to the company on this claim, holding there was insufficient evidence of causation. E. Lust v. Sealy, Inc., 277 F.Supp.2d 973 (W.D. Wisc. 2003) (Title VII sex discrimination for failure to promote & Equal Pay Act) (Equal Pay Act claim dismissed at summary judgment; Title VII claim went to jury trial; plaintiff’s verdict. Defendant moved for judgment as a matter of law, new trial, and amendment of verdict on liability and damages. Motions denied.) Tracy Lust was hired as a sales coordinator in Madison, Wisconsin in 1992. She was promoted to a Territory Manager 1 in 1993, and to a Territory Manager 2 in 1995, still in Madison. She expressed interest in the next management level position, and her Supervisor recommended her for promotion. In 2000 she applied for the first opening, which was in Chicago. The VP of Sales chose a man who had been a Territory 2 Manager since 1997. Lust complained during her performance review that she believed she had not been promoted due to gender discrimination. Shortly thereafter, she was promoted to a key account manager position. 14 Her Supervisor had recommended the man instead of Lust. In explaining his decision at trial, the Supervisor testified that he did not choose Lust because she was not willing to move from Madison to Chicago. He admitted Lust had never told him she was unwilling to move, and she testified she told him repeatedly she wanted a promotion and asked what she needed to do to meet her goal. In contrast, when the male who was selected for the promotion talked to the same Supervisor about a promotion and what he should do to get one, the Supervisor interpreted his interest as meaning the man “was very interested in any promotion in any location in the United States.” The Supervisor could not explain why he interpreted their responses so differently. Lust also testified that when she asked the Supervisor why she did not receive the promotion, he told her, “You have kids.” He admitted at trial that he had told her that he believed she would not move from Madison to Chicago because of her family, that he thought Lust “was quite happy in Madison” because “she had a family there,” and did not want to move in part because “she had gotten married.” He admitted Lust did not tell him she was opposed to moving because of her husband or children. The trial court noted, “Defendant is correct that discrimination based on family or marital status is not the same thing as sex discrimination. Even if plaintiff was denied a promotion because of her family, this would not necessarily violate Title VII, which prohibits discrimination because of sex, not because an employee has a spouse or children . . . If [the Supervisor] decided that plaintiff would not (or could not) move because she was a woman with a family, then he engaged in sex stereotyping. Denying a woman a promotion because of a stereotypical belief about her obligation to her family is discrimination because of sex.” In denying the defendant’s motions, the trial court also noted that evidence that the Supervisor made the following comments supported a finding that he had an outdated and stereotypical attitude towards women:  When Lust discussed a promotion with him, he expressed surprise and asked her “why Jerry [her husband] wasn’t going to take care of her”  When Lust commented at sales meetings, he rolled his eyes and made comments like, “Oh, it’s just like a woman,” “Oh, you’re just being a blonde today,” etc. In upholding the verdict, the court rejected the defendant’s argument that these remarks were irrelevant: 15 . . . The Court of Appeals for the Seventh Circuit has recognized that even comments not made ‘in temporal proximity to the employment action’ or ‘in reference to that action’ may be probative of discrimination, though, standing alone, they are insufficient to prove the plaintiff’s case or even to shift the burden of persuasion to the defendant . . . Of course, the older and more tangentially related the comment is, the less probative value it has. But this is generally an issue that goes to the weight and not the admissibility of the evidence. Other interesting issues: 1. May an employer deny a promotion to a woman who complains of sexual harassment if it believes that the new position may subject her to further harassment? Lust had previously complained to the Supervisor about being sexually harassed by a client customer account. The Supervisor told her “there are always two sides to every story” and removed her from the account and replaced her with a man. At trial, the Supervisor testified that the second reason he did not promote Lust was because the account she would be handling had “a lot of single young men” and a “rougher type of crowd,” and based on her prior complaint, he did not think she could tolerate the sexism there. The Court pondered this and concluded that “a belief that an employee could not tolerate sexist customers could be a legitimate reason for choosing not to place that employee on an account with sexist customers. What an employer may not do, however, is assume that all women will be ineffective with ‘single young men’ or that all women need to be protected from men who use ‘raw language.’” 2. “Paternalism” is illegal. The defendant argued that the Supervisor had been very supportive of Lust. Lust argued at trial that the Supervisor had made false assumptions about her because she was a woman, not that he hated her or thought women were incompetent. The Court pointed out that “Sex discrimination covers more than just refusing to promote a female employee out of a hatred or hostility for women. Paternalism is no less illegal than animus under Title VII if it denies a woman an opportunity that she otherwise would have received . . . A general support for plaintiff would not be inconsistent with a failure to consider her out of a belief that her family limited her desire to move or that women should be protected from sexually inappropriate behavior.” 16 3. Double standard as to “aggressiveness” There was testimony that Lust was not selected for the promotion because she had been overly aggressive with a buyer. This, too, was evidence of gender stereotyping. The Court noted that a problem with the reliance on a belief that Lust was too “aggressive” was that it was undisputed that the defendant taught its employees to be aggressive. “The court of appeals held that when an employer requires aggressiveness in its employees and then penalized a woman for expressing it, this may be evidence that the employer was engaging in sex stereotyping because aggressiveness is often viewed as a desirable quality in men but not in women . . . As the Supreme Court stated in Price Waterhouse, ‘An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable an impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.’” F. DeBoom v. Raining Rose, Inc., 772 N.W.2d 1 (Iowa 2009) (Pregnancy discrimination case under the ICRA; post‐trial appeal based on alleged errors in jury instruction; remanded for new trial) This case is based on pregnancy discrimination under the Iowa Civil Rights Act and is a key Iowa discrimination case for multiple reasons, including the burden of proof for discrimination cases under Iowa law and proper instructions for pretext and “motivating factor.” It also has important implications for cases involving sex discrimination based on stereotypes. Elizabeth DeBoom began working for Raining Rose in 2003 as a marketing director. A few weeks later, she informed the company’s president that she was pregnant. When the chairman of the board learned of the pregnancy, he asked DeBoom if she was going to “be like all those other women who find it’s this life‐altering experience and decide to stay home.” DeBoom assured him that she was committed to the company. After her maternity leave, DeBoom returned to work part‐time to a massive list of project to complete. They told her she was doing a great job and gave her a raise. She soon returned to full‐time status and was terminated eight days later, allegedly for failing to complete a major project on time. The company president told DeBoom that she “wasn’t catching up fast enough and that they had begun to doubt whether [she] was committed to [the] job.” 17 DeBoom sued for pregnancy discrimination. A jury trial resulted in a defense verdict. DeBoom appealed, alleging errors in the jury instructions. The defendant asserted that DeBoom did not have a valid pregnancy claim because her status as a “new mom” is not part of the protected class of pregnant women. In reversing and remanding the case for a new trial, the Court agreed that the ICRA did not recognize a discrimination claim based on “new parent” status. However, it held that there was substantial evidence linking DeBoom’s termination to her pregnancy. Specifically, DeBoom had presented statements from which a jury could infer animus toward pregnant women; the Court stated that “[a] jury could infer that DeBoom’s employer assumed she would return to the company without the same commitment to her work as before and therefore discriminated against her once she returned from maternity leave.” The Court was careful to point out that “we do not hold Iowa Code section 216.6(2) prohibits an employer from terminating an employee based on the employee’s decision to prioritize family over work. Such a decision can be made by men as well as women and, therefore, is not based on the unique capacity of women to bear children so as to fall within the scope of Iowa’s statute.” G. Wright v. State of Iowa, Polk Co. Dist. Ct. No. CL115637 (April 11, 2011) (Sex stereotyping under the Iowa Civil Rights Act, Iowa Code Chapter 216, for discriminatory termination) (summary judgment for defendant denied) Jennifer Wright accepted a position in 2007 as the Deputy Director of the State of Iowa’s Office of Energy Independence. She reported to Director Roya Stanley, a divorced woman with no children. From the start of her employment through her termination in 2009, Stanley repeatedly made comments to Wright about the lack of commitment of working women with children and questioned Wright’s childcare arrangements, which did not interfere with Wrights performance. Examples include:  Sharing her philosophy about “pathways in life” and how to prepare for choosing the direction of family life  She understood the time‐intensive responsibilities of parenting, and that was not how she had chosen to spend her time  Questioning Wright’s husband’s participation in childcare arrangements  Telling Wright it would be nice if she had a robot to watch her daughter  Repeatedly trying to talk to Wright about the importance of her “life/work balance” and “priorities” 18  Suggesting Wright take a lower‐level position due to her “priorities”  Praising a female job applicant who was planning a second pregnancy for “knowing her priorities” when she declined to apply for a more demanding position  Telling Wright she was “not dedicated enough” to her job  Telling Wright she did not feel she was “committed to the agency”  Telling Wright to “think about what your priorities are and what you want to do with your life”  Stating that Wright’s family was a priority to her, but her job was not At the same time, Wright’s performance reviews were excellent. Stanley terminated Wright in 2009. When Wright asked why, Stanley replied it was because of the issues they had discussed three weeks earlier: Wright’s working hours, lack of dedication, and life “priorities.” In the lawsuit, the State pointed to a missed deadline and using an aggressive “tone” in meetings as the termination reason. Stanley replaced Wright with a male Deputy Director. He testified that he worked the same number of hours as Wright, missed “dozens” of deadlines, and that Stanley had repeatedly reprimanded him for dealing with co‐workers inappropriately. Nonetheless, Stanley never questioned his commitment to his job, told him he was not working enough hours, or inquired into his “priorities” or his childcare responsibilities. She also did not terminate him for any performance issues. Wright brought a claim of sex discrimination based on a sex stereotype theory. Being fortunate enough to have a good male comparator (same job, same supervisor, etc.), she also used a traditional sex discrimination theory in resisting summary judgment. In denying summary judgment, the Court recognized that discrimination based upon sexual stereotypes is illegal, citing Price Waterhouse, Chadwick, Back, and Lust. The Court found that Stanley’s statements “evidenced a belief that women were incapable of striking the balance critical to the deputy director position.” It held that Wright’s “history of exemplary performance reviews” and evidence that her male replacement, also a parent, was not terminated despite serious performance deficiencies provided additional support for her claim sufficient to withstand summary judgment. 19 7. Law Firms as Defendants Law firms in particular have been slow to adjust to treating working mothers equally. Its tradition as a male‐dominated field has passed, with females constituting approximately half of all law school graduates now. Nonetheless, many firms still cling to the traditional cultural norm that a career in law requires a level of commitment and dedication that mothers of children, by definition, cannot meet. Common examples of discriminatory conduct against attorneys or firm staff who announce a pregnancy or that they have small children include: A. Poor reviews and lesser assignments after announcing pregnancy or motherhood B. Not hired as associates due to “priorities” C. No opportunities for advancement or partnership status D. Harassment Representative Cases: A.
Hishon v. King & Spalding, 467 U.S. 69 (1984) (holding that partnerships such as this large Atlanta law firm are “employers” subject to Title VII’s prohibition against sex discrimination; Title VII requires law firms to consider women for partnership) (but the relationship among partners is not to be characterized as an “employment” relationship to which Title VII applies) (but see EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. 2002) (holding that individuals classified as partners were “employees” for purposes of the ADEA and could not be terminated based on their age)). B.
Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) (reduced to misdemeanor work two months after announcing pregnancy, after successfully litigating murder trials for many years; $250,000 award after lawsuit) C.
Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 123 F.App. 558 (4th Cir. 2005) (Once employer found out she had a small child, he began to treat her differently, such as calling her a “stupid bitch” and “f‐‐‐ing idiot;” a partner told her she was not perceived as being “as committed” as other lawyers and she needed to decide if she wanted to be “a successful mommy or a successful lawyer.” She won nearly a half million dollars. The court upheld punitive damages against law firm on the grounds that, as a law firm with an employment practice, the firm should have known enough not to engage in gender stereotyping, such as giving the impression that “pregnant women don’t make partner”). D.
Wynn & Wynn, P.C. v. Mass. Comm’n Against Discrimination, 431 Mass. 655 (2000) (female law clerk and mother of two applying for a for full‐time associate position was told no jobs were available; the firm hired a male associate three 20 E.
months later. An investigation revealed that managing partner had declined her because her “priorities lay elsewhere.”) Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716 (7th Cir. 1998) (female attorney was told by boss, “If you were my wife, I would not want you working after having children” and told other employees that Kennedy should be home with her child now and should not be working.) 8. Legal Issues to Consider A.
No “New Parent” Protection The Iowa Civil Rights Act does not recognize a discrimination claim based on an employee’s status as a “new parent.” DeBoom, 772 N.W.2d at 7. See also Lust, 277 F. Supp. 2d at 982 (“[D]iscrimination based on family or marital status is not the same thing as sex discrimination. Even if plaintiff was denied a promotion because of her family, this would not necessarily violate Title VII, which prohibits discrimination because of sex, not because an employee has a spouse or children . . .[However], [d]enying a woman a promotion because of a stereotypical belief about her obligation to her family is discrimination because of sex”); see also Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 342 (8th Cir. 1997) (Generally, a woman’s status as a new parent, standing alone, is insufficient to establish membership in the protected class for pregnancy discrimination). B. No need to allege “Sex Plus” Discrimination “’Sex‐plus’ discrimination occurs when employees are classified on the basis of sex plus one other seemingly neutral characteristic.” Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 805 (Iowa 2003), citing Knott v. Missouri Pac. R. R., 527 F.2d 1249, 1250‐51 (8th Cir. 1975). A “sex‐plus” theory requires evidence that the same distinction is made among those of the opposite sex. Id. In cases involving illegal sex stereotyping, using the “sex plus” label does not apply and can unnecessarily complicate the analysis. The First Circuit in Chadwick, supra, describes how, even though the old “sex plus” terminology may persist to some extent, such claims are straightforward sex discrimination claims based on stereotypical assumptions about working mothers: [Title VII] does not prohibit discrimination based on caregiving responsibility. Chadwick’s claim can be characterized as a “sex plus” claim . . . The terminology may be a bit misleading, however, because the “plus” does not mean that more than simple sex discrimination must be alleged; rather, it describes the case where “not all members of a disfavored class are discriminated against.” Back, 365 F.3d at 118. . . 21 . . . Regardless of the label given to the claim, the simple question posed by sex discrimination suits is whether the employer took an adverse employment action at least in part because of an employee’s sex . . . Chadwick, 561 F.3d at 43. (Emphasis in original). See also Hibbs and Lewis, supra. As such, to survive summary judgment, a plaintiff need only present sufficient evidence for a reasonable jury to find she alone was discriminated against on the basis of sexual stereotyping; no evidence of differential treatment for similarly situated males (or females) is required. C. No Comparators Required In reversing summary judgment for the employer in Lewis, 591 F.3d at 1038‐41, the Eighth Circuit noted that “[t]he district court’s error was in requiring Lewis to offer evidence that similarly situated men were treated differently.” Id. at 1040. Other circuits have similarly rejected the need for comparator evidence. Id. at 1039, citing Young v. Warner‐Jenkinson Co., 152 F.3d 1018, 1022 (8th Cir. 1998); Back, 365 F.3d at 121 (“Defendants are wrong in their contention that Back cannot make out a claim that survives summary judgment unless she demonstrates that the defendants treated similarly situated men differently . . . there is no requirement that such evidence be adduced”); and Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir. 2003). “Courts ‘consistently emphasize[] that the ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.’” Lewis, 591 F.3d at 1039. (Emphasis in original). D. Stereotyping by Same Sex? The individual making discriminatory employment decision based on outmoded stereotypical beliefs is often the same sex as the plaintiff. There is no presumption that a person will not discriminate against a member of his or her own protective class. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (“Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group”) (quoting Castaneda v. Partida, 430 U.S. 482, 499 (1977). 9. Guidance for Plaintiff’s Counsel: Identifying and Litigating Motherhood Discrimination Claims A. Comments are Golden. As each of the cases above demonstrate, discriminatory statements are critical for uncovering the stereotypical mindset. The plaintiff’s clear and consistent recollection of these statements is important. Such statements are often 22 confirmed through interviews or deposition of the plaintiff’s co‐workers or the defendant’s peers or supervisors. B. Explore the Discriminating Individual’s Belief System. It is also important to explore the foundation of the discriminating individual’s belief system during his or her deposition. Ask probing questions regarding her own hopes and aspirations for family and career, philosophy regarding the role of women in the family, what her personal experiences have been, what choices she made and why she made them. What did he or she learn from those experiences? Were there any regrets? Did their own spouse work while the children were young? Why or why not? Did his or her own mother work while he or she was young? Is he or she influenced by any religious doctrines or philosophies in regard to working mothers? In many cases, the individual appears to project his or her own values or experiences on the plaintiff. Deposition testimony as to this process can be valuable in proving the case. C. Consider Adding a Standard Disparate Treatment Sex Discrimination Claim. If you are fortunate enough to have a good male comparator with similar performance and family obligations, but who was not subjected to critiques as to his “priorities,” “commitment,” or childcare obligations, as in the Wright case above, use it to your advantage. Emphasize in your primary argument that a discriminatory stereotype is sex discrimination in and of itself – no comparator evidence is needed. You can then argue in a secondary argument that your case also succeeds based on a traditional sex discrimination theory where a similarly‐
situated male is treated differently, and present the facts accordingly. D. Be Sure the Plaintiff is Qualified and Meeting Performance Expectations. Motherhood not an excuse for not fulfilling job duties. The plaintiff cannot expect any special treatment for not fulfilling her duties because she has family obligations as well. “[I]t is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII.” Chadwick, 561 F.3d at 45. (Emphasis added). 23 10. Guidance for Defendant’s Counsel : Preventing Caregiver Discrimination Claims4 A. Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities B. Develop, disseminate, and enforce a strong EEO policy that defines relevant terms and describes common stereotypes or biases about caregivers C. Provide examples of prohibited conduct relating to workers’ caregiving responsibilities D. Ensure that managers at all levels are aware of, and comply with, the organization’s work‐life policies E. Respond to complaints of caregiver discrimination efficiently and effectively F. Protect against retaliation G. Focus on applicants’ qualifications; do not ask questions about the applicant’s or employee’s children, family planning, pregnancy, or caregiving‐related issues during interviews or performance reviews H. Ensure that job openings, positions, and promotions are communicated to all eligible employees regardless of caregiving responsibilities; do not assume certain employees (for example, mothers of young children or single parents) will not be interested I. Ensure employment decisions are well‐documented and transparent 11. Resources EEOC Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. http://www.eeoc.gov/policy/docs/caregiving.html Joan C. Williams et al., Law Firms as Defendants: Family Responsibilities Discrimination in Legal Workplaces, 34 Pepperdine L. Rev. 393 (Jan. 20, 2007) Stephanie Bornstein, Poor, Pregnant and Fired: Caregiver Discrimination Against Low‐
Wage Workers, University of California Hastings College of the Law (2011). http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf www.worklifelaw.org (UC Hastings College of the Law) 4
See Diana B. Johnston, EEOC, “Family Responsibilities Discrimination,” April 2009; pp. 605‐622, Poor, Pregnant and Fired: Caregiver Discrimination Against Low‐Wage Workers, University of California Hastings College of the Law (2011). http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf 24