Meeting of the Equal Employment Opportunity Commission
February 15, 2012
Washington, D.C.
Unlawful Discrimination Against Pregnant Workers
and Workers with Caregiving Responsibilities
Statement of Joan C. Williams1
Good morning, Madam Chair, Commissioners Ishimaru, Barker, Feldblum, and Lipnic. Thank you
for the opportunity to participate in this meeting today. My name is Joan C. Williams. I am a law
professor and Founding Director of the Center for WorkLife Law at the University of California,
Hastings College of the Law. I am the author or co-author of six books and over sixty law review
articles and (with Cynthia Thomas Calvert and Gary Phelan) am currently writing a treatise on
caregiver discrimination, titled Family Responsibilities Discrimination, for the Bureau of National
Affairs. I have written extensively on work-life balance, the “maternal wall” (discrimination
against mothers), and caregiver discrimination.
The EEOC needs to act now. Women will never achieve equality until mothers do, and mothers
will never achieve equality while pregnancy and caregiver discrimination remain widespread
and startlingly open. Far too frequently, gender discrimination jeopardizes not only women’s
careers, but also the economic stability of the families that depend on their paychecks.
Workplace discrimination results in a loss of talent and training that has sharply negative
economic consequences. In a rapidly globalizing world, the United States can no longer afford
to train women and then push them out of their jobs and careers after they have children. The
time has come to level the playing field for mothers—and to create conditions where fathers
can play a more active role in family care.
The Way Forward: Next Steps on Addressing Pregnancy and Caregiver Discrimination
Today I discuss “The Way Forward,” recommending next steps on pregnancy and caregiver
discrimination. The EEOC’s 2007 Enforcement Guidance on Caregiver Discrimination had a
positive effect, both in giving guidance to EEOC investigators and in informing defense lawyers
on the need to advise clients on how to avoid potential liability. 2 The Center for WorkLife Law
has documented a nearly 400% increase in caregiver discrimination suits filed between 1999
and 2008, as compared to the previous decade—and this type of litigation has a sharply higher
success rate than do most other kinds of employment discrimination suits. Social science
studies show why. 3 Maternal wall bias against mothers is an order of magnitude larger than
glass ceiling bias against women in general. The most famous study found that when subjects
were given identical resumes, one but not the other for a mother, the mother was 79% less
likely to be hired, 100% less likely to be promoted, offered an average of $11,000 less in salary,
and held to higher performance and punctuality standards than the non-mother.4
1
I join the National Partnership in urging the Administration to appoint a multi-agency task force
to address issues related to discrimination against pregnant women and caregivers.
It would also be very beneficial for the EEOC to begin collecting data not only on pregnancy
discrimination cases (which it currently does) but also on the larger universe of cases involving
caregiver discrimination. Greater data collection would improve knowledge of other types of
cases involving discrimination against caregivers, which historically have been harder for
employers, employees, and their lawyers to recognize.
I will spend the bulk of my time discussing in greater detail three additional steps that would be
useful for the EEOC to undertake at this time:
1) A more active role in educating employers and their lawyers about caregiver
discrimination law.
2) Additional Guidance to clarify that the interaction between the Pregnancy
Discrimination Act and the 2008 Amendments to the Americans with Disabilities Act
(“ADAAA”) means that pregnant women now have greater workplace protections
than most employers currently recognize.
3) Additional Guidance to affirm the importance of stereotyping evidence and to
correct misimpressions among investigators and employment lawyers caused by
some courts’ over-reliance on, and misuse of, comparator evidence.
1. The Urgent Need for Further Outreach to Employers and Their Lawyers
The 2007 Guidance was an important first step in beginning to educate not only EEOC
investigators, but also employers and their lawyers, that discrimination against pregnant
women and mothers is gender discrimination prohibited by Title VII.5 Nonetheless, outreach to
both employers and their lawyers needs to be improved, as evidenced by the blatant nature of
the problems that continue to be experienced by pregnant women and adults—men as well as
women—with caregiving responsibilities. In my discussions with members of the employment
bar in preparation for this testimony, both defense and plaintiffs’ lawyers expressed the view
that many employers still are ill informed about recent developments in the law prohibiting
discrimination against caregivers.
For over a decade, WorkLife Law has run a hotline for individuals with caregiver discrimination
claims, or “family responsibilities discrimination” claims, as we call them. In addition, we
maintain a comprehensive case database that, to the best of our ability, includes every
caregiver discrimination case ever decided—almost 3,000 cases. Both Hotline calls and the case
law database confirm the common sentiment that further education is urgently needed for
employers and their lawyers.
Typical calls. Here are some typical calls:
•
2
A mother was given less client contact and work because of her family responsibilities.
When she announced her second pregnancy, she was fired. (This common pattern of
discrimination is widely reported by plaintiffs’ employment lawyers).6
•
Caller was fired when she was eight months pregnant and told her job was being
transferred to another town. Caller was not asked to relocate or invited to apply for other
positions that were open for which she was qualified. She was the only person on her team to
be let go—and the person with the most job experience.
•
Caller’s new supervisor was no longer scheduling her according to her availability due to
her child care constraints, but continued to accommodate the scheduling needs of other
employees, notably students.
•
A mother was ready to return from maternity leave and contacted her employer about
her schedule. Her employer refused to accommodate her schedule restrictions due to daycare,
but accommodated other employees who were attending school or had second jobs.
•
A new mother was denied a promotion although her entire team was promoted.
Egregious calls. Here is what callers have reported in some of the more egregious cases:
•
Caller took intermittent FMLA leave to care for his wife. After informing his employer
that his wife would be going on long-term disability, his new supervisor told Caller that he must
be in the office from 8am-5pm and that he could no longer flex, telecommute, or work from
home – despite the fact that employer permitted and even encouraged all similarly situated
employees to flex and telecommute. Caller had been telecommuting, working from home, and
flexing his hours for well over a decade with no detriment to his performance.
•
Caller’s boss announced he was closing the office because of the poor economy. Later
he told her he found another property a few blocks away and was looking for someone who
didn’t have other obligations. Caller and her co-worker, both mothers, were not considered for
the position.
•
A pregnant employee was not permitted to alter her uniform to accommodate her
pregnancy. Instead, she was required to take FMLA leave when she could no longer wear the
uniform – despite the fact she had no physical limitations. Her FMLA leave will expire before
she delivers her child.
•
A civil servant’s employer offers no light duty except for on-the-job injuries and permits
only seven months’ leave with job protection. When caller became pregnant, she was forced to
take medical leave immediately; her leave will expire before her baby is born.
“Kill it.” Perhaps the most shocking type of caregiver discrimination shows up both on
the Hotline and in the case law: situations in which women are given a choice between getting
an abortion and losing their jobs.7
3
•
A delivery driver informed her employer she was pregnant. Within one hour she was
placed on involuntary, unpaid medical leave because the employer thought she could not do
her job. She was three months pregnant and her only restriction was that she couldn't lift more
than 20 pounds. Her employer told her she would lose her medical benefits within 12 weeks of
going on leave. She applied for another position with the same employer at a thrift store, but
the employer's human resource manager decided based on a phone call that she could not do
the job. Employee’s doctor called to say she could work. Employee received unemployment
benefits, which the company unsuccessfully appealed. Despite strong religious convictions, the
employee decided she needed to get an abortion so she could remain employed and feed her
two small children. When she discovered she was carrying twins, she decided not to have the
abortion. She was visiting family when her employer sent a letter saying they would assume she
had resigned her job unless she responded within 48 hours. She returned home and pleaded for
work in any capacity so she could feed her children. Two weeks later, she was terminated. 8
•
A sales clerk was about to be promoted when she became pregnant. Her supervisor
advised her to get an abortion. He offered to pay for it and to drive her to the clinic. When she
did not get an abortion, the supervisor allegedly threatened to push her down the stairs and
also made her do more lifting than she had be required to do when not pregnant. Another
pregnant employee was treated in similar ways.9
•
An employee who had been working at Wendy’s for four years notified her employer
she was pregnant with her second child. According to the plaintiff’s allegations at summary
judgment, her supervisor encouraged her to have an abortion and belittled the employee by
telling her to "take your fat pregnant ass home" whenever they disagreed. The employee
experienced pregnancy-related illness and requested leave; she went home after receiving
permission from her shift manager. Her supervisor retaliated by falsely writing up the employee
for not getting permission to leave and changing her work schedule for the next day without
giving her notice. While taking her ill son to the pediatrician's office, the employee received
several hostile phone calls from her supervisor telling her to get her "pregnant ass" to work or
she would be fired. On her way to work, her supervisor told her they found coverage and she
need not show up but wrote employee up for a "no call, no show." After the supervisor stated,
"I know you're pregnant, and maybe you should just stay your pregnant ass home because I'm
not going to deal with this bullshit anymore," the employee was afraid that if she took any
more sick leave she would lose her job. So she worked full shifts the following three days
despite feeling sick. The employee miscarried. She tried to contact her supervisor through
numerous phone calls, but was unable to reach her. Her supervisor terminated her because of
her attempts to take time off of work.10
•
A medical biller became pregnant. According to the plaintiff’s allegations at summary
judgment, no one told her about her pregnancy disability leave rights and her employer AMS
had no policies to provide that information. She had difficulty with her pregnancy because of a
uterine tumor. The business owner called her and said that she could solve her high-risk
pregnancy problems by having an abortion, and that there were ways of getting away with
4
things without telling husbands and boyfriends. The conversation upset her, partly because of
her religious beliefs. She kept missing work because of her pregnancy. AMS reduced her hours
and also stopped her medical insurance. She was terminated for absences, tardiness,
insubordination, and misconduct.11
•
A cook was repeatedly subjected to national origin discrimination. In addition, when her
employer found out she was pregnant she was demoted from cook to dietary aide. The
employer began to pressure the employee to have an abortion. She decided to have the
abortion and the employer began to treat her nicely, but when she went to the clinic she
decided she could not carry through and did not have the abortion. When the employee tried
to report these incidents, the administrator tried to help, but was ineffective. The employee
was not put on schedule and thought she had been fired, so she did not report to work. She
was fired when her employer alleged she had abandoned her job.12
•
Several female firefighters in Washington D.C. were required to take pregnancy tests,
and test negative, in order to be hired. If a firefighter got pregnant in her first year, her job was
in jeopardy. Plaintiffs are three women who had abortions so that they would not lose their
jobs.13
These cases are only the most obvious signal that something is truly wrong in the American
workplace when it comes to the treatment of pregnant women and mothers on the job. Many
women need to work, and are given a choice that violates their basic constitutional right to
control over their own decisions concerning reproduction.14 As troubling as it is to say it, a clear
statement is needed from the EEOC that employers cannot insist that a woman have an
abortion in order to keep her job.
Caregiver bias against men.15 Another arena where employers, courts, and lawyers are
very confused concerns caregiver discrimination against men. Most such cases now are brought
under the Family and Medical Leave Act, presumably because of lawyers’ and courts’ lack of
understanding that men who are discriminated against because they play an active role in
family care may well have also a cause of action under Title VII.
•
An airline maintenance parts foreman sought intermittent FMLA leave to care for his
newborn. He was told to let his wife care for the baby because he “had a shop to run.”16
•
A police officer who had taken FMLA leave for the birth of each of his three children was
passed over for promotions multiple times. Supervisors regularly derided him in front of his
peers, including the comment, “Congratulations for taking the most time off for having a baby
and not actually having the baby.”17
•
An accountant who asked for FMLA leave for the birth of his child was told he did not
have the same rights as women did and that he could not take leave if his employer was “really
busy.”18
5
•
When an equipment operator requested FMLA leave to care for his wife, step-daughter,
and son, all of whom had developed serious medical conditions, his supervisor asked why the
mother or "real" father of his step-daughter could not take care of the kids.19
•
A lumber company management trainee requested FMLA leave to take care of his sick
father. His employer told him “he would be cutting his own throat” if he took the leave. He was
fired when he took the leave.20
•
A cashier who took FMLA leave to care for children during his wife’s high-risk pregnancy
was penalized and characterized as “not reliable.”21
•
A systems support technician who took FMLA leave to care for his father, who was ill
with cancer, was told repeatedly by his supervisor “you're killing us.”22
•
A police sergeant who took two months FMLA leave to care for his newborn was denied
a promotion. A supervisor commented, “Who the hell does [he] think he is that he can just go
on this FMLA leave and leave us shorthanded?”23
•
An aircraft mechanic was disciplined and ultimately fired for “lack of dependability”
after using FMLA leave to care for his pregnant wife, who suffered from gestational diabetes. 24
•
A store operations manager’s supervisor said he had “lost confidence” in the worker
after he took a week of paternity leave during inventory, which was a particularly busy time.25
•
A carpenter on FMLA leave to care for his father, who had had a heart attack, was told
that “no one wanted to work with him” and was terminated.26
•
A divorced father of three, including a son with hemophilia, was told that he needed to
decide which was more important, his job or his family, after he took multiple FMLA leaves to
care for his son.27
Light duty. Denial of light duty is to women what high school education requirements
were to African-Americans in the 1970s: both are objective work rules that work to exclude
outsiders. Sometimes this is all too obvious. Stansfield v. O’Reilly Auto., Inc., 2006 U.S. Dist.
LEXIS 31640 (S.D. Tex. 2006) involved an employer who, when he found out the plaintiff was
pregnant, threw up his hands and said “What are we going to do now?” Id. at *7. At this
particular workplace, women were encouraged to get men’s help when lifting heavy objects.
Yet once the plaintiff got pregnant, she was told she could no longer seek such help. When she
brought in a note from her doctor limiting her lifting to 20 pounds, her employer first asked her,
“what was the weight I told you?”, and then, “after some indecision” (said the court) decided
that her job required her to lift 50 pounds. Id. at *8.
While some employers openly manipulate lifting restrictions in order to exclude pregnant
6
women, others are more subtle. As alleged in the Plaintiffs’ Opposition to Summary Judgment
in Lochren v. Suffolk, 2004 WL 5517505 (E.D.N.Y. 2004), a police department routinely staffed
desk and other light duty positions with officers who could not perform “full police duties.” It
grandfathered in 36 male officers who had been on light duty for years. But light duty was not
available to pregnant women: they were given the option of going on leave or remaining on
patrol without bulletproof vests and gun belts. (The department did not provide either in sizes
suitable for late-term pregnant women.) A nearby police department refused to grant light duty
to pregnant women despite the fact that they were operating under an identical county policy
to the one struck down in Lochren.28
Some employers insist on limiting pregnant employees to light duty even when the employee
herself insists she is ready, willing, and able to do her regular job. An example is Richards v. City
of Topeka, 173 F.3d 1247 (10th Cir. 1999), where a firefighter was promptly removed from her
job after she announced her pregnancy, and her request for a return to full duty was ignored.
This kind of discrimination, which limits women’s ability to work when pregnant because of
prescriptive stereotypes about how pregnant woman should behave, was declared illegal in the
1970s.29 Yet “one of the biggest complaints from female sworn officers is that when they notify
their department that they are pregnant, they are removed from their position,” noted one
report.30
Women regularly win light duty cases when the plaintiff can show that the light duty
requirements in question were trumped up or applied unequally to men and women. Yet most
of the cases involve situations where employers offer light duty only to workers injured on the
job, and these cases women typically lose on the grounds that the Pregnancy Discrimination Act
does not require that pregnant women be given special “preferential treatment.”31 (The
WorkLife Law database has over 100 cases involving light duty. That is almost certainly an
undercount, because we did not code for this.32)
This analysis is unconvincing. The Pregnancy Discrimination Act requires that pregnant women
be treated “the same” as other workers with a similar ability or inability to work. The statute
thus defines “similarly situated” in terms of “ability or inability to work,” not in terms of “place
of injury.”33 “It is the incapacity that makes a comparator ‘similar’ to a pregnant woman, not
the location where the incapacity arose.”34 In addition, to the extent that a pregnant woman’s
accommodation is not directly required by the ADAAA, it may be required by the PDA if another
worker has been accommodated pursuant to ADAAA requirements, given the PDA’s mandate
that pregnant workers be treated the same as others with a similar ability or inability to work.
The bottom line is that employers’ contention that they can exclude pregnant women because
they prefer to accommodate only people with on-the-job injuries is not in compliance, by and
large, either with the ADAAA or with the PDA. The fact that employers prefer to cover only
employees with on-the-job injuries because that keeps their worker’s compensation costs
down is understandable.35 It is also irrelevant to the issue of whether pregnant workers have
rights under federal law.
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Urgent need for public outreach. These cases and Hotline calls highlight the need for the
EEOC to undertake an intensive public education effort to reach out to employers and their
lawyers to explain what constitutes illegal caregiver discrimination against pregnant women,
mothers, and men.
2. Guidance is Needed to Clarify that Pregnant Women and Caregivers Now Have Far
Greater Workplace Rights than Most Employers Recognize Because of the ADAAA
Pregnant women and new mothers have new workplace rights due to the amendments to Title
I of the Americans with Disabilities Act (“ADAAA”). 42 U.S.C. §§ 12101-12117, 12201-12213
(2012). The ADAAA gives pregnant women and mothers rights to accommodations for
pregnancy they lacked in the past.
Pregnant women have new rights to accommodation as a result of the interaction of the PDA,
42 U.S.C. § 2000e(k) (1978), and the ADAAA. The following plaintiffs (who lost suits brought
under the Pregnancy Discrimination Act, then the only available cause of action) might well
have the right to reasonable accommodations today:
•
A pregnant woman with inappropriate sinus tachychardia, a type of cardiac arrhythmia,
who lost her job because her employer refused to accommodate her, saying she was “a heart
attack waiting to happen.”36
•
A pregnant woman ordered not to stand for more than six hours without a break.37
•
A pregnant welder ordered not to enter the paint shop.38
•
A pregnant sales associate denied permission to carry a water bottle, which she needed
due to pregnancy-related urinary tract and bladder infections.39
•
A rural mail carrier who needed various accommodations due the interaction between
her pregnancy and her pre-existing hypertension.40

A pregnant Activity Director in a nursing home who needed lifting restrictions due to
spotting and an increased risk of miscarriage.41
Each of these women could have continued working. Most required only a modest workplace
accommodation in order to do so. Yet none was entitled to accommodations under the pre2008 ADA. Because pregnancy-related conditions did not qualify as “impairments,” most
pregnant women were not eligible for the reasonable accommodations they needed to enable
them to continue working throughout pregnancy. As a result, many were forced onto family
leave much earlier than they needed it. Consequently, their leave ran out before they were
ready to return to work, which meant that they ultimately lost their jobs.
A. Guidance is Needed to Clarify that a Broad Range of Pregnancy Conditions May Be
Impairments under the ADAAA
Pregnancy is not a disability. Some women have completely healthy pregnancies that allow
them to continue working as they did before they were pregnant, right up to the time they
8
deliver the baby. But many women encounter pregnancy conditions that require workplace
restrictions.
Most restrictions imposed on pregnant women result when a woman reports a symptom that
the doctor interprets as a risk to the woman or her ability to deliver a healthy, full-term child.
Common temporary pregnancy restrictions include (but are not limited to): lifting restrictions,
restrictions on the amount of time a worker can stand in a given day or how long she can stand
without taking a short break, restrictions that limit exposure to toxins, restrictions that require
access to drinking water or bathrooms (due to an increased susceptibility to urinary tract
infections, severe nausea, and/or pressure on the bladder), and restrictions on overwork and
other scheduling restrictions, including (for some women) periods of bed rest.
These restrictions differ dramatically in terms of how long they last. Some last as little as a week
or two, while others last several months or more. Some are aimed at protecting the mother,
notably lifting restrictions, which typically arise because pregnant women’s softening joints
make them more vulnerable to back injury. Other restrictions are aimed at protecting the
mother’s ability to deliver a healthy baby by minimizing the chance of miscarriage, pre-term
birth, or birth defects.
A key reason complications of pregnancy did not qualify as “impairments” under the pre-2008
ADA is that the Appendix to the regulations expressly stated “conditions, such as pregnancy,
that are not the result of a physiological disorder are not an impairment.”42 Moreover, the
same Appendix stated that "temporary, non-chronic impairments of short duration, with little
or no long term impact, are usually not disabilities."43
The new ADAAA and accompanying regulations greatly expand the potential for temporary
conditions to qualify as impairments if they substantially limit a major life activity. Guidance is
needed to clarify the range of temporary pregnancy-related conditions that may now qualify as
impairments.
The Interpretive Guidance attached as an Appendix to the ADAAA regulations offers some
general principles, but not sufficient clarity. Its first principle remains that pregnancy is not per
se a disability: “…conditions, such as pregnancy, that are not the result of a physiological
disorder are also not impairments."44 However, the next sentence states that under some
circumstances “a pregnancy-related impairment that substantially limits a major life activity is a
disability under the first prong of the definitions.”45 An example is pregnancy-related carpal
tunnel syndrome, which results not from repetitive motion (as it does in the general
population), but from fluid retention. In order to treat pregnant women the same as other
workers with carpal tunnel, as required by the PDA, workplace accommodations are needed so
that the employee in question can avoid further injury.
B. Guidance is Needed to Clarify that a Worker Who Presents a Doctor’s Note
Recommending an Accommodation Needed to Protect the Pregnant Woman’s
Health is Entitled to the ADAAA’s Reasonable Accommodations Provisions
9
Under the ADAAA and its enabling regulations, the substantial limitation requirement is to be
“construed broadly in favor of expansive coverage.”46 Guidance is needed, however, on the
specific application of the new broad construction to pregnant workers.
The Appendix to the new regulations following the Interpretative Guidance clarifies that an
impairment that limits only a single major life activity can be a disability under the ADAAA. The
Commission states,
“Thus for example, someone with an impairment resulting in a 20-pound lifting restriction
that lasts or is expected to last several months is substantially limited in the activity of lifting
and need not show that he is unable to perform activities of daily living that require lifting in
order to be considered substantially impaired in lifting.”47
Notably, the only example given refers to a male worker. The EEOC needs to clarify that a
pregnant worker with a doctor-recommended lifting or other restriction also is substantially
limited in a major life activity and therefore covered by the ADAAA.
If a doctor, in the exercise of professional judgment, decides that a pregnant woman risks
hurting herself if she lifts weight over a certain poundage, her condition qualifies as an
impairment. For the pregnant woman is in precisely the same position as other workers are:
often, the issue is not that she is physically incapable of lifting (or otherwise working without
the restriction). The doctor’s restriction simply means that she needs the restriction to avoid
injury. To require a pregnant woman to work in the face of a risk of injury, while no other
worker is required to do so under the ADAAA, would constitute a violation of the Pregnancy
Discrimination Act’s mandate that pregnant women must be treated the same as colleagues
with a similar ability or inability to work. To put it another way, because employers are not
allowed to second-guess a doctor’s orders in any context other than pregnancy, they are not
entitled to do so in the context of pregnancy either.
C. Guidance is Needed to Clarify that a Medical Condition that Imposes Risks that a
Pregnant Women Will Not Be Able To Deliver a Healthy, Full-Term Baby
Constitutes an Impairment Under ADAAA
Moreover, when a doctor, as the result of an assessment of an individual woman’s pregnancy,
decides that a restriction or accommodation is necessary to protect the woman’s ability to
deliver a healthy, full-term baby, the pregnant woman again has the right to reasonable
accommodation under the ADAAA.
The ADAAA provides that reasonable accommodations need to be given to workers who are
impaired with respect to their ability to perform a major life activity.48 A “major bodily
functions” category was added to the ADAAA specifically to make it easier for impaired
individuals to qualify.49 This new language, which expressly includes "reproductive functions,"
means that if a woman’s ability to deliver a healthy, full-term baby is compromised unless she
10
receives accommodations that do not impose an undue hardship on the employer, she is
entitled to those accommodations.50
Given that we would not require a man with severe depression to carry on if he needed an
accommodation necessary to protect his health, the Pregnancy Discrimination Act mandates
that we treat a pregnant woman the same: she, too, is not required to carry on without an
accommodation if doing so would jeopardize her ability to deliver a healthy child.
D. As Always, the Employer Has Various Defenses Under the ADAAA
Under the ADAAA, once a pregnant worker requests an accommodation in the form of a
doctor-ordered restriction, the interactive process required under the ADA begins. This, of
course, also means that employers can raise any appropriate defenses (i.e., undue hardship,
direct threat).51 As an example, when a pregnant woman is confined to bed for many months,
and her job is not one in which telecommuting is feasible, the employer may not have to
accommodate her because doing so would impose an undue hardship on the employer. If,
however, the woman ordered to bed rest can do her job over the phone and the internet from
her bed, then the employer may be required to accommodate her telecommuting
arrangement, unless the five-factor test for undue hardship is satisfied. 52
3. Guidance is Needed to Affirm the Importance of Stereotyping and Harassment
Evidence, and to Correct the Misuse of, and Over-Reliance on, Comparator Evidence in
Caregiver Cases
Title VII provides that it “shall be an unlawful employment practice for an employer…to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin” (emphasis added). Title VII does not define discrimination by reference to comparisons;
comparators are simply one way among many of determining whether a difference in
treatment stemmed from the plaintiff’s membership in a protected class. Title VII aims to
determine whether the employer is treating some people less favorably than others “because
of’” sex or another prohibited consideration.53 One way of proving this is to introduce evidence
that compares the employer’s treatment of the plaintiff with its treatment of a “comparator”—
someone who is similarly situated to the plaintiff. Yet from the beginning, the Supreme Court
has consistently warned that, while comparator evidence is often useful, it is not the only way
to prove discrimination. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13 (1973),
the Court was careful to note that the factors listed were “not inflexible” and that while
comparator evidence was “especially relevant” other forms of evidence “may be relevant to
any showing of pretext.” In Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 284, 253-54 (1981),
the Court warned that the plaintiff’s burden in proving its prima facie case is “not onerous” and
that the employer’s actions, “if unexplained, are more likely than not based on the
consideration of impermissible factors.” The Supreme Court has also stressed that it “never
intended” the McDonnell Douglas requirement “to be rigid, mechanized, or ritualistic…[but]
merely a sensible, orderly way to evaluate the evidence in the light of common experience.”54
11
“Precise equivalence,” the Court has cautioned, “is not the ultimate question.”55
Nonetheless, since 2000, courts have come to rely more and more on comparators. According
to a 2009 law review article, the term comparator linked with the term discrimination first
appeared in 1981.56 The linked terms were used only 21 times prior to 1990.57 Between 2000
and the end of 2008, however, the linked terms reportedly appeared 1,113 times in a
combination of federal and state cases.58 Some courts merely reiterate the position that
evidence of similarly situated employees is a “common and especially effective method” for
establishing plaintiff’s prima facie case.59 However, other courts have turned what began as
one heuristic for proving that an employer’s action was “because of” sex into a rigid
prerequisite, treating the absence of a comparator as fatal to the plaintiff’s claim. Three law
review articles detail both this trend and its inconsistency with the statutory language of Title
VII as well as Supreme Court case law.60
The lower courts are split. A 2002 study found that six circuits generally held that a plaintiff’s
failure to produce a comparator was fatal to her case, while in three circuits the law was
inconsistent. In the remaining three circuits, courts held that comparators were one way
plaintiffs could choose to prove they had been disadvantaged because of sex.61 Courts that
require a comparator state the fourth element of the McDonnell Douglas test as requiring proof
of similarly situated individuals, while others state the fourth element as requiring instead that
“the decision or action occurred under circumstances giving rise to an inference of
discrimination based on his membership in the protected class.”62
We urge the EEOC to issue Guidance highlighting that pregnancy and caregiver discrimination
often take the form of stereotyping and harassment, and that investigators, employers, and
courts should not assume that employers cannot be liable because of the lack of a similarly
situated man who has been treated better than the plaintiff.
A. A Lack of Comparators is Not Fatal to a Plaintiff’s Title VII Case Under Supreme Court
Case Law
The view that comparators are indispensable to a Title VII case is inconsistent with Supreme
Court precedent. Justice Thomas has said that discrimination cannot occur absent “a
comparison of otherwise similarly situated persons who are in different groups by reason of
certain characteristics provided by statute” and Justice Kennedy appears to agree.63 Yet these
assertions appear only in dissenting opinions.
Supreme Court cases are clearly inconsistent with the view that a lack of comparator evidence
dooms a discrimination case. For example, in Price Waterhouse v. Hopkins, 490 U.S. 228, 236
(1989), the Supreme Court specifically found that no comparators existed when Ann Hopkins
was denied partnership, but it found in favor of Hopkins nonetheless. In Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998), the Supreme Court found for a plaintiff who alleged
that he had been sexually harassed by his colleagues despite the fact that both he and they
were men—so clearly he did not establish his case by pointing to a similarly situated woman.
12
Finally and most tellingly, in Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-47 (2006), the Supreme
Court, in a per curiam opinion, reined in the Eleventh Circuit, which had held that a plaintiff can
raise an inference of discrimination by pointing to her superior qualification only when “the
disparity in qualifications is so apparent as virtually to jump off the page and slap you in the
face.” (Id., citing Ash v. Tyson Foods, Inc., 129 F. App’x 529, 533 (11th Cir. 2005) (internal citation
omitted)). This went too far, the Court held, although it passed up the opportunity to clarify the
appropriate standard. The EEOC should provide Guidance to help clarify the situation.
B. Treating the Failure to Produce a Comparator as Fatal to a Plaintiff’s Case Ignores the
Fact that Plaintiffs Can Prove Caregiver Cases Through Evidence of Gender
Stereotyping
When courts treat the failure to identify a comparator as fatal they read out of existence the
long-established method of proving that an employee was treated less favorably because of sex
by introducing evidence of gender stereotyping.64 This method of proof has been used since
1989, in Price Waterhouse v. Hopkins, 490 U.S. 228, 236 (1989), and is particularly
commonplace in caregiver cases.65
Most notable are cases where courts, in their search for an elusive comparator, ignore the kind
of stereotyping evidence that plays a particularly important role in caregiver discrimination
cases (as the EEOC noted in its 2007 Guidance). See Enforcement Guidance, supra note at
II.A.1.jj
In Troupe v. May Department Stores, 20 F.3d 734, 736 (1994), the court ignores the importance
of a statement by plaintiff’s supervisor that Troupe “was going to be terminated because [the
supervisor] didn’t think I was coming back to work after I had my baby.” That statement reflects
the stereotype that once women become mothers they are no longer committed to work. Not
only did the Troupe court ignore evidence of gender stereotyping; it openly embraced the
common stereotype of pregnant women and mothers as “lazy” when it said that the plaintiff’s
morning sickness continued to affect her work even after her employer allowed her to start
later in the day because she slept in “so that noon was ‘morning’ for her.” Id. at 735. ( The court
appears not to know that it’s called morning sickness because it begins in the morning and lasts
all day.) The court granted the employer’s summary judgment due to lack of a comparator.
A similar stereotype emerged in Persky v. Dolgencorp, Inc., 2008 U.S. Dist. LEXIS 13905 at *15.
The Persky court dismissed a Lead Store Clerk’s case at summary judgment due to lack of a
comparator, ignoring comments made by plaintiff’s supervisor, who said he, “he didn’t see her
returning until after her pregnancy because at the end of her leave she would only be farther
along in her pregnancy.” The assertion (without any evidence) that a worker, solely because she
is pregnant, is automatically unwilling or unable to work is precisely the kind of
overgeneralization the Supreme Court has decried as stereotyping since the 1970s.66
In Geier v. Medtronic, Inc., 99 F.3d 238, (7th Cir. 1996), the plaintiff’s supervisor made a series of
13
truly egregious comments about pregnant women and mothers. He advised the plaintiff to
“Have all the kids you like—between spring, summer, and fall. I will not work your territory
during the winter months.” Id. at 240. He phoned her several times at home and in the hospital
while she was miscarrying, informing her at 7 am to “get out of your G-d d-n bed and call your
accounts if you want to keep your f-g job.” Id. at 241. The court discounted the importance of
these statements and awarded summary judgment for the employer due to lack of a
comparator.
The court in Dent v. Davaco, Inc., 2009 U.S. Dist. LEXIS 120631 (N.D. Tex. 2009), ignored in its
consideration of the plaintiff’s basic discrimination claim the statement by plaintiff’s supervisor
that she was “done” when she informed him of her pregnancy, an assertion that his wife was
pregnant and constantly going to doctor’s appointments, his inquiry about “how many tries did
it take you” (to get pregnant), and his pointed question as to whether she was “still pregnant,”
which presumably was a suggestion that she get an abortion. All four statements reflect the
common stereotype that pregnant women and mothers are not committed or competent
workers.67 The court granted summary judgment for the employer due to lack of a comparator,
without analyzing whether the stereotyping was sufficient to raise an inference of
discrimination based on pregnancy. It is impossible to imagine a court discounting a statement
that a worker is “done” because of his race, or membership in another protected category.
Another instance in which a court dismissed the plaintiff’s case due to a lack of comparators
involved an assumption that has been expressly prohibited by the Supreme Court. In Young v.
United Parcel Servs., Inc., 2011 U.S. Dist. LEXIS 14266 at *29, a Division Manager informed a
pregnant worker that she was “too much of a liability” to remain at work, meaning that in his
opinion her pregnancy presented too much of a risk of negative health impacts on the baby
that might lead the employer to be sued. The Supreme Court, in Int’l Union v. Johnson Controls,
499 U.S. 187 (1991), rejected precisely that argument when Johnson Controls maintained that it
should be able to exclude pregnant women because they might bring tort suits based on their
on-the-job exposure to workplace toxins. The court ignored the Young plaintiff’s case due to
lack of comparators.
C. Treating the Failure to Produce a Comparator as Fatal to a Plaintiff’s Case Also Ignores
the Fact that Plaintiffs Can Prove Caregiver Cases Through Evidence of Harassment
Another accepted way to prove pregnancy or caregiver discrimination that is growing in
importance involves harassment. In the best-known harassment case, Walsh v. National
Computer Sys., 332 F.3d 1150 (8th Cir. 2003), the plaintiff was a “top performer” whose
supervisor increased her workload, required her to make up time for doctor’s appointments
although no other employee was required to do so, hyper-scrutinized her performance, refused
to allow her to pick up her sick child from daycare, made insulting comments about pregnancy
and motherhood, and allegedly threw a phone book at her, directing her to find a different
pediatrician who was open after business hours. The court found for the plaintiff without any
mention of comparator evidence.
14
In Zisumbo v. McCleodUSA Telecomm. Servs, Inc., 154 F. App’x 715 (10th Cir. 2005), a senior
account executive was harassed by her supervisor after informing him she was pregnant.
Supervisor referred to her as "prego" and spoke to her in a loud and abusive tone. When
plaintiff confronted her supervisor he told her to "quit or go on disability if she could not handle
the stress of her pregnancy." Id. at 726. The supervisor continued to tell her to quit because of
her pregnancy. When the employee told the supervisor to stop harassing her, she was
demoted. She complained, but her complaints were not investigated. She received negative
evaluations and was transferred to an office 60 minutes away. Finally, she went on disability
leave for the rest of pregnancy and did not return to work. The lower court granted summary
judgment for the employer. On appeal, the court found her work environment objectively
hostile, and both severe and pervasive.
In Griffin v. Lab. Synergy, LLC, 2011 WL 3251551 (S.D.N.Y. 2011), a bookkeeper announced her
pregnancy, after which one week of her vacation time was taken away. She was required to
take sick days or lunch time for her medical appointments, but other employees were not. The
employer began a campaign of attacks against the plaintiff, trying to force her to quit, including
unrelenting and overbearing supervision, ignoring then openly ridiculing her concern for
workplace safety, and intentionally sabotaging her relationship with a co-worker. The plaintiff
had previously told her employer she could not afford to work part-time and assured him she
wanted to work full-time after the birth of her child. Nonetheless, the employer moved her to
part-time. When she told him she could not afford to work part-time, she was fired. The
plaintiff filed suit. The court denied plaintiff’s motion to dismiss.
In Iweala v. Operational Tech. Servs., Inc., 634 F.Supp.2d 73 (D.D.C. 2009), a computer systems
analyst/programmer (from Nigeria) notified her supervisors about pregnancy, then was
terminated. It was her second pregnancy during her employment. The employer moved for
summary judgment, and the court held that although the employer’s proffered reasons for
terminating the employee were legitimate and nondiscriminatory, a fact issue existed as to
whether the employer’s reasons for terminating her were pretext for discrimination based on
evidence that her supervisors excluded her from meetings, placed her on the bottom of every
leader chart for assignments, reprimanded her when other similarly-situated individuals were
treated more favorably, treated her rudely, subjected her to profanity, and fired her when she
was pregnant. Further, a factual issue existed as to whether the employer terminated the
employee in retaliation for her complaining about alleged discriminatory conduct toward her,
which precluded summary judgment as to a hostile work environment claim.
In Pruente v. Home Depot U.S.A. Inc., 2007 U.S. Dist. LEXIS 69159 (D. Kan. 2007), a retail
employee became pregnant with her third child. According to the complaint, her female
supervisor asked her in her review when she was going to quit and told her to stay home with
her children. The plaintiff submitted her FMLA paperwork for maternity leave, but her
supervisor told everyone she was not coming back. When she tried to return from maternity
leave, she was told she had been terminated because her FMLA paperwork had not been
processed; her supervisor had not processed it because she thought she was not coming back.
She was rehired but changed, without her knowledge, from full-time to part-time. She tried to
15
transfer to another job, but was denied because she was not full-time. She complained to
Human Resources and to the Department of Labor, and was disciplined for an infraction that
happened two months earlier.68 The court held that while the plaintiff’s other claims were
barred by the statute of limitations; her hostile work environment claims were not barred.
In Borchert v. State of Okla., 2006 U.S. Dist. LEXIS 5786 (N.D. Okla. 2006), a child care attendant
at Oklahoma State University was terminated after her doctor imposed lifting restrictions. The
employer claimed the restrictions made the employee ineligible for employment. When the
employee informed her employer that she was pregnant her supervisor rolled her eyes and
congratulated her in a "hateful manner." Id. at *2. The employee also alleged that after her
employer became aware of her pregnancy, the employer refused to consult with her, gave her
administrative responsibilities to others, and allowed other employees to harass her about her
pregnancy. The employee took leave pursuant to FMLA because of pregnancy complications.
When she returned to working she was put on a corrective action plan due to complaints
lodged before she took her leave. Also, when she returned she had a doctor's note restricting
her to lift no more than 10 pounds due to her pregnancy. The employer informed her that she
could not continue working in the child care center because of the weight lifting restrictions.
The employee then brought a new doctor's note which restricted her to only lifting infants but
not toddlers. The employer informed her she would not be permitted to return to work if she
had any restrictions. The court found enough evidence in the record to establish a hostile work
environment and so denied the employer’s summary judgment motion.
Other hostile environment cases, like Walsh, involve motherhood. Clark v. AmerisourceBergen
Corp., 2005 U.S. Dist LEXIS 1459 (E.D. Pa. 2005) involves an in-house counsel and Vice President
for Human Resources with an excellent performance record who was questioned by a high-level
executive about her ability to do her job with two small children. When she got pregnant with
her third child, another executive advised her to keep it a secret. When the secret could no
longer be kept, she was told by the General Counsel that she “could not do this” and that she
should take a two-year leave of absence and return when her children were older. When she
took her maternity leave (at the same time caring for a son who was diagnosed with epilepsy),
she worked part-time from home and was pressured to return from leave early. When she
returned, she was subjected to hostility and repeated questions about her ability to do her
work and to travel—even though she was fully capable of performing all her tasks. When she
pointed out to an executive that a man with children was not similarly questioned about his
ability to combine work and family, he said, “that’s the point, he’s a man and he has a wife.”
Because the executive did not think a mother could work at a high level job, he demoted Clark.
She declined to take the demotion and was fired. She was not given a severance package and
was fired just before a large raise and new bonus structure were to kick in. After she left she
found out she had been paid less than comparably situated men all along.69 In its motion to
dismiss, the employer claimed that the plaintiff had misunderstood the statements and had
quit. The court allowed the case to go forward on Title VII sex discrimination and hostile
environment claims.
D. The Pregnancy Discrimination Act Precludes Dismissal of a Plaintiff’s Case Because She
16
Cannot Identify a Pregnant, Parturient or Breastfeeding Man
The rigid insistence that a comparator is always required in order for a discrimination plaintiff
to prove her case has produced absurd results in cases involving pregnancy, childbirth, and
breastfeeding, as plaintiffs struggle to identify a pregnant, nursing, or parturient man.
In Martinez v. NBC, Inc., 49 F. Supp. 2d 305 (S.D.N.Y. 1999), a court held that a breastfeeding
mother could not make out a prima facie case for gender discrimination because she could not
produce a comparator since men don’t breastfeed. The same happened in Derungs v. Wal-Mart
Stores, Inc., 374 F.3d 428, 432 (6th Cir. 2004), where the court (quoting the lower court’s
decision) said, “Drawing distinctions among women…on the basis of their participation in
breast-feeding activity, simply is not the same as drawing distinctions between men and
women…If anything, [distinctions between women who breast-feed and those who don’t]
establish ‘breast-feeding’ discrimination,’ which…is not discrimination based on sex.” (Internal
citations omitted.) Under this analysis, no plaintiff could ever prove that she had been
discriminated against due to pregnancy or related medical conditions such as breastfeeding,
despite the Pregnancy Discrimination Act’s explicit prohibition of discrimination based on
“pregnancy, childbirth, or related medical conditions.”70 More generally, courts have held that
breastfeeding is not a “medical condition” related to “pregnancy and childbirth,” a position that
makes little sense: if breastfeeding is not a medical condition related to pregnancy, it is hard to
imagine what is.71 Though these cases are now largely superseded by the Patient Protection
and Affordable Care Act, which requires that employers (over a size threshold) provide time
and a place for breastfeeding, they remain important for highlighting some of the flawed
approaches to comparator analysis. Patient Protection and Affordable Care Act § 4207, 29
U.S.C. § 207 (2006 & Supp. 2010.
In Hess-Watson v. Potter, 2004 U.S. Dist. LEXIS 53 (W.D.Va. 2004), the plaintiff argued that her
employer had held against her the fact that she was on maternity leave in awarding a certain
workplace benefit. The court dismissed her suit because she had not identified any man out on
maternity leave.
Perhaps the most famous pregnancy discrimination case (mentioned above), Troupe v. May
Department Stores, 20 F.3d 734 (1994), involved a plaintiff with severe morning sickness. The
court awarded summary judgment for the employer on the grounds that the plaintiff had not
submitted evidence of a “hypothetical Mr. Troupe” (with severe morning sickness?). The
plaintiff’s “failure to present any comparison evidence,” asserted Judge Richard Posner in the
majority opinion, “doomed her case.” Id. at 738-39.
When courts hold that women can never prove a discrimination case if they cannot identify a
similarly situated man in cases involving physical conditions that happen only to women, they
embrace a male norm that deprives women of all protection under Title VII to the extent that
women are different from men. The result is a man’s world in a very literal sense: women are
protected only to the extent they are like men, while men are protected across the board. This
result is clearly inconsistent with Title VII’s prohibition on disadvantaging women “because of
17
sex” or “on the basis of sex.”
When courts insist on a comparator in situations in which—by definition—a comparator cannot
exist, women become fair game for discrimination based on pregnancy, breastfeeding, and
childbirth. This implausible interpretation of Title VII is a reiteration of the Supreme Court’s
holding in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that pregnancy discrimination is
not discrimination based on sex. But Gilbert was overruled long ago by the Pregnancy
Discrimination Act, which very clearly expressed Congressional intent to establish that
discrimination based on pregnancy, childbirth, and related medical conditions is discrimination
“because of sex” in violation of Title VII. Clarification from the EEOC would remind courts and
investigators that plaintiffs do not have to produce a pregnant, parturient, or breast-feeding
man in order to survive summary judgment
Moreover, in their attempt to identify suitable comparators in contexts where, by definition,
women’s experience is not comparable to men’s, courts end up comparing pregnant women
and mothers to employees who are not, in fact, similarly situated. Troupe provides an example.
The Troupe court demanded that the plaintiff find a man who had the same record of tardiness
so she could compare her treatment to his, ignoring the fact that a male employee who was
persistently late because he was seriously ill or seriously lazy is not similarly situated to a
pregnant woman with a good performance record who has a period of acute nausea that will
end abruptly, typically after a few months (or more rarely, when she delivers), leaving her
ready, willing, and able to work.72
Courts’ misapplication of the comparator “requirement” under Title VII overlooks the
importance of stereotyping evidence, which plays a particularly important role in cases
involving mothers. Existing Second Circuit precedent in Back v. Hastings on Hudson Union Free
Sch. Dist., 365 F.3d 107 (2d Cir. 2004) clearly states that “stereotyping about the qualities of
mothers is a form of gender discrimination” even “in the absence of evidence about how the
employer in question treated fathers.” Id. at 113. Thus “stereotyping of women as caregivers
can by itself and without more be evidence of an impermissible, sex-based motive.” Id. at 122.
The 2007 EEOC Guidance stressed the important role of stereotyping evidence in caregiver
cases. “The presence or absence of any particular kind of evidence is not dispositive. For
example, while comparative evidence is often useful, it is not necessary to establish a
violation.”73
E. Misapplication of the Comparator “Requirement” is Particularly Fatal to Sex
Discrimination Claims Brought by Caregiving Men
When it comes to caregiving men alleging gender stereotyping, many courts not only
continue to require a comparator but frame the proper comparator in a way that dooms
potentially legitimate claims. Men as well as women have had their cases dismissed for lack of a
comparator even when they produced evidence of strong and explicit stereotyping. In McGarity
v. May Kay Cosmetics, 1998 U.S. Dist. LEXIS 1150 (N.D. Tex. 1998), a father who worked as a
18
Central Weigh Technician was subjected to immediate and persistent hostility and negative
employment actions after requesting parental leave to care for his wife and their third child.
The court notes that his supervisor “reacted badly to McGarity’s request for leave and
complained to others in their department that men could not or should not be allowed to take
leave for the birth of a child.” Id. at *2. The court did not treat this as evidence of stereotyping,
and granted summary judgment for the employer for failure to identify a suitable comparator.
The Supreme Court since the 1970s has decried as stereotyping employers’ refusal to
accommodate men who want to play the traditionally female caregiving role.74 Hibbs v. Nevada
reiterated this long-established principle when it noted, “Stereotypes about women’s domestic
roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for
men.”75
The same prescriptive stereotypes, insisting that men play the breadwinner role, appear in
Hayden v. Garden Ridge Mgmt., LLC, 2009 WL 5196718 (E.D. Tex. 2009), in which the general
manager of a store was fired, allegedly for performance issues, a week after he requested leave
to care for his wife and newborn. The HR official who handled his request for leave questioned
the amount of time off he requested, commenting that it is “very strange that we have a male
manager request that amount of time off, we have never had that before.” Id. at *4. This
comment evidences prescriptive gender stereotyping: the viewpoint that men should not take
time off for caregiving. Nonetheless, the court ignored the stereotyping evidence and dismissed
the gender stereotyping claim because the plaintiff was replaced by a male. Of course, the fact
that a man who adheres to men’s pre-assigned “breadwinner” role does not encounter
discrimination, whereas a man who does not adhere to that role does, is itself evidence of
gender bias. This point is lost on the Hayden court.
New research documents that men encounter workplace gender bias if seek an active role in
family caregiving. While both men and women who take family-related leaves tend to get lower
performance evaluations,76 experimental research shows that men tend to be penalized more
when they ask for family leave.77 New research shows that fathers who take family-related
leaves suffer both because they are seen as poor workers and because they are seen as more
feminine.78 Another new study shows that, although men and women place a high value on
workplace flexibility, men are less likely to seek it out when they perceive that doing so will see
them to be viewed as insufficiently masculine—which is often the case.79 A third study found
that caregiving fathers encountered “masculinity harassment” and mistreatment.80 In short,
these studies show, the flexibility stigma often encountered by men stems from prescriptive
gender stereotypes that link manhood with performing as a breadwinner.81
F. An Arbitrary Insistence on Comparator Evidence Eliminates Title VII Protections for
Huge Classes of Plaintiffs
An arbitrary insistence on one particular form of evidence contravenes the intent of Congress
by eliminating huge groups of plaintiffs from Title VII protection, in direct contravention of that
law’s intent to protect women from discrimination based on sex.82
19
Women in sex-segregated jobs. Due to intense sex-segregation of jobs, roughly three-fourths of
American women would have to change jobs to have the same job titles as men.83 This means
that women often will not be able to point to a similarly situated man, because the job category
in question consists solely or largely of women. An example is Galdieri-Ambrosini v. Nat’l Realty
& Dev. Corp., 136 F.3d 276, 291 (2d Cir. 1998), where the court rejected a secretary’s claim
because she could not point to a male secretary. When courts insist on evidence that compares
women to men, the majority of American women are arbitrarily deprived of the protection of
Title VII.
Women who work for small employers. Over 14 million American women work for businesses
with fewer than 25 employees, in which it will often be impossible to point to a similarly
situated man.84
Women in high-level managerial jobs. Virtually all women in high-skill or knowledge-intensive
jobs, almost by definition, will not be able to point to anyone, male or female, who is
sufficiently “similarly situated.”
This clearly was not the intent of Title VII, which aims to offer equal employment opportunity
for all women.
G. Even Where Comparator Evidence May be Useful and Appropriate, Some Courts’
Insistence on an “Almost Twin”85 Often Effectively Eliminates Title VII Protection
Some courts require that a comparator be “nearly identical” to the plaintiff, making it
impossible for most plaintiffs to identify a comparator who is enough like them to be accepted
by the court.86 This approach is inconsistent with the Supreme Court’s approach to race
discrimination in the context of peremptory challenges. In Miller-El v. Dretke, 545 U.S. 231, 247
n. 6 (2005), the Court noted, “None of our cases announces a rule that no comparison is
probative unless the situation of the individuals compared is identical in all respects, and there
is no reason to accept one.”
In addition, some courts have set up arbitrary per se rules, such as that comparators must share
the same supervisor.87 The Supreme Court struck this down as a per se rule in Sprint/United
Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140 (2008). As mentioned above, the Supreme Court also
struck down the Eleventh Circuit’s bizarre test that a plaintiff could only use comparator
evidence to prove discrimination on the grounds that her qualifications were superior to those
of the comparator “if the disparity in qualifications is so apparent as virtually to jump off the
page and slap you in the face.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006).
Some courts have been more subtle to much the same effect. Many require that comparators
be an “almost twin” in the context of discipline cases, pointing to differences in the type of,
number of, or guilt for infractions alleged by the employer, an approach that gives the savvy
employer free rein to ensure that a plaintiff will find no comparator.88 When courts require that
plaintiffs show that employees are “treated differently for ‘nearly identical conduct,’ finding a
20
comparator is impossible more often than not.89
Particularly troubling is that courts often use the “almost twin” test to grant summary judgment
for the employer. Courts often ignore the very basic rule that, at summary judgment, courts are
obliged to take the evidence in the light most favorable to the nonmoving party—in
employment cases, almost invariably the plaintiff. “Whether a comparator is similarly situated
is ‘usually a question for the fact-finder,’” notes the court in Coleman v. Donahoe, 2012 U.S.
App. LEXIS 241 at *19 (7th Cir. 2012).
Some of the strangest decisions complain of a “small sample size for comparison.” Id. at *17.
This language appears to refer to the fact that statistical analyses are less dependable when
overall numbers are low. But, of course, comparator evidence in the individual cases where this
point is raised typically has nothing whatsoever to do with statistical regressions. When courts
complain of small sample size, they do no more than reveal their ignorance of statistical
concepts.
Other courts take an approach more consistent with the intent and the language of Title VII,
noting that “the similarly-situated analysis calls for a ‘flexible, common-sense’ examination of
all relevant factors."90 Although comparators “must be ‘directly comparable’ to the plaintiff in
‘all material respects’…they need not be identical in every conceivable way.” Id. (citing
Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009), which cites
Raymond v. Ameritech Corp., 442 F.3d 600, 610-11 (7th Cir. 2010)). “We are looking for
comparators, not ‘clone[s],’” notes the court in Coleman v. Donahoe, 2012 U.S. App. LEXIS 241
at *17 (quoting Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010)).
“Comparators need only be similar enough to enable ‘a meaningful comparison.’” Id. at *25
(quoting Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007), aff’d 553 U.S. 442 (2008)).
A more sweeping issue is whether the existing McDonnell Douglas three-step pattern has
overstayed its welcome. In her concurring opinion in Colman v. Donahoe, 2012 U.S. App. LEXIS
241, Judge Wood argues that “the various tests we have insisted lawyers use have lost their
utility. Courts manage tort litigation every day without the ins and outs of these methods of
proof, and I see no reason why employment discrimination litigation…could not be handled in
the same straightforward way. In order to defeat summary judgment, the plaintiff one way or
the other must present evidence showing that she is in a class protected by the statute, that
she suffered the requisite adverse action (depending on her theory), and that a rational jury
could conclude that the employer took that adverse action on account of her protected
class…[I]t seems possible to collapse all these tests into one. We have already done so when it
comes to the trial stage of a case. See. e.g., EEOC v. Bd. of Regents of Univ. of Wisc. Sys., 288
F.3d 296, 301 (7th Cir. 2002). It is time to finish the job and restore needed flexibility to the pretrial stage.”91
H. Courts’ Comparator Analyses in Light Duty Cases are Particularly Troubling
Courts’ comparator analyses are particularly troubling in the context of cases in which plaintiffs
21
are requesting light duty assignments. A particularly dramatic example is Dimino v. New York
City Transit Auth., 64 F. Supp. 2d 136, 142 (E.D.N.Y. 1999), in which the court awarded summary
judgment for the employer on the grounds that the plaintiff “has been unable to demonstrate
that any similarly situated employees were treated better than she was”—despite the fact the
she had introduced evidence that her employer had accommodated one officer who was
injured while scuba diving, another who was injured while jogging, a third who was recovering
from foot surgery, and a fourth who had hurt his hamstring. Equally troubling is Young v. United
Parcel Servs., 2011 U.S. Dist. LEXIS 14266 (D. Md. 2011), where the court dismissed a pregnant
plaintiff’s case for lack of comparator evidence when the plaintiff had introduced evidence that
her employer accommodated male employees who needed light duty for a wide variety of
reasons, including that they had lost their drivers’ licenses due to drunk driving.
In addition, in a series of cases courts refuse to allow pregnant plaintiffs to use as comparators
workers who have claimed a disability under the Americans with Disabilities Act.92 These courts
argue that pregnant plaintiffs in need of light duty are not similarly situated to men who need
light duty due to an ADA-eligible disability, because the employer is required by law to
accommodate the ADA-eligible workers but not the pregnant women. This is the purest form of
circular argument.93 The only reason the employer is required to accommodate the workers
who cannot lift for reasons other than pregnancy but not pregnant workers equally in need of
light duty is that the court has arbitrarily decided to exclude the pregnant workers from
protection under the law. This exclusion in effect allows light duty for any impairment in the
universe other than pregnancy, in direct contravention of the Pregnancy Discrimination Act’s
mandate to treat pregnant workers the same as those with an equal ability or inability to work.
Guidance is sorely needed to correct courts’ over-reliance on, and misuse of, comparator
evidence.
The following principles are important ones:
1. Comparator evidence is not a threshold requirement for establishing a Title VII claim.
It is merely one method for proving pretext or raising an inference of discrimination at
the prima facie case stage of litigation. At the prima facie stage of an employment
case, the issue of whether or not someone is a suitable comparator typically is a
question for the finder of fact.
2. A plaintiff can raise an inference of discrimination, without identifying a comparator,
by introducing evidence of gender stereotyping. The following stereotypes are
particularly common:
1. A pregnant woman can be barred from work out of her employer’s concern for
her unborn child.
2. An employee should, or must, get an abortion if she wants to keep her job.
3. A pregnant woman will not return to work after childbirth, unsupported by
evidence about the individual involved.
22
4.
5.
6.
7.
8.
9.
Pregnant women are not committed to work.
Pregnant women are lazy or incompetent.
Pregnant women should not work.
A working mother should not breast-feed her child.
“Men’s jobs” are unsuitable for women, pregnant women, or mothers.
Pregnant women cost employers too much, unsupported by specific evidence
drawn from the workplace at issue.
10. Men who take an active role in family caregiving are less manly, and less
committed and valuable as workers.
3. Courts are particularly confused about stereotyping of men in cases involving
discrimination against caregivers. Men who play an active role as family caregivers,
instead of men’s expected “breadwinner” role, often encounter prescriptive
stereotyping, i.e., old-fashioned assumptions about what gender role men should
play. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) establishes that
stereotyping of men by men can be proven under Title VII even in the absence of a
comparator.
4. A plaintiff who seeks to prove harassment based on pregnancy or maternity need not
introduce comparator evidence.
5. The insistence that a comparator be “nearly identical” to the plaintiff is inconsistent
with the purpose and intent of Title VII, and with the Supreme Court’s approach to
proving discrimination in other contexts.
6. Plaintiffs have many ways to prove a circumstantial case under a McDonnell-Douglas
framework, including showing pretext by discrediting the employer’s asserted
legitimate reason for the adverse action, by reference to objective standards of
performance, and by relying on comments made by decision-makers. It is plain that
insistence on a proffer of comparator evidence to defeat summary judgment is
inappropriate.
7. The following types of evidence are particularly suitable to raise an inference of
discrimination in a prima facie case in pregnancy or caregiving discrimination cases:
o Self-comparison: Treatment before and after a woman became pregnant (or
became a parent or step-parent), e.g., Hunter v. Mobis Ala., LLC, 559 F. Supp.
2d 1247 (M.D. Ala. 2008) (employee praised for performance and her
attendance never scrutinized until she announced her pregnancy; court found
sufficient indicia of discrimination without a comparator). See also Gallina v.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 123 F. App’x 558 (4th Cir.
2005) (female lawyer’s work was criticized once her supervising partner
learned she was a mother; she received good reviews from other supervisors,
but poor review from the supervising partner).
o Comparison to (actually) similarly situated others: Women with children
23
o
o
o
o
compared to men with children, e.g. Phillips v. Martin Marietta Corp. 400 U.S.
542, (1971); Trezza 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998).94 Women with
children compared to women without children, e.g., McGrenaghan v. St. Denis
School, 979 F. Supp. 323 (E.D. Pa. 1997) (sex plus claims are brought where a
subclass of a protected category is discriminated against, plaintiff who was
replaced by a woman without a disabled child may maintain her sex plus
claim). Note that the message of the studies of maternal wall bias is that
mothers encounter gender bias not encountered by women without children.
See, e.g. Correll et al.95
Comparison to an objective measure: For example, if a pregnant woman is
terminated and she is the highest grossing salesperson or the winner of the
employee of the decade award. Or a mother is clearly qualified for a promotion
and the company decides to reorganize rather than promote anyone. Other
examples of objective measures might be sales made, customer satisfaction,
awards won, disciplinary record, or qualification for job.
Timing: Woman announces she’s pregnant and is fired that day or very soon
after.96 While timing alone usually can’t satisfy the fourth prong, very close
proximity is sufficient.
Position remains open: In a failure to hire case, the employer cannot avoid a
discrimination claim simply by not filling the plaintiff’s position. Shepherd v.
Geo. W. Park Seed Co., Inc., 2008 WL 4065775 at *5 (D.S.C. 2008) (observing
that the fourth prong of the McDonnell Douglas prima facie case can be
satisfied by evidence showing that “the position remained open”); Pierce v.
Sears, Roebuck and Co., 2005 US Dist. LEXIS 1360 (D. Me. 2005) (same).
An “RIF of one” or other questionable inclusion in RIF: In an RIF situation, a
plaintiff can raise an inference of discrimination by showing his or her
employer could have retained him or her but instead retained non-protected
employees. Gordon-Howell v. Penn-Plax, Inc., 232 F. Supp. 2d 1251 (D. Kan.
2002) (pregnant plaintiff laid off in RIF and three non-pregnant employees
retained), citing Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1167 (10th Cir.
1998). Additionally, a plaintiff can meet her prima facie case by showing a
nexus between her selection for an RIF and pregnancy. E.g., Asmo v. Keane,
Inc., 471 F.3d 588 (6th Cir. 2006) (temporal proximity between employer’s
learning of pregnancy and selection for RIF sufficient to meet fourth prong).
Conclusion
I want to thank the Commission for the opportunity to present these ideas today. The 2007
Guidance had a very positive impact on protecting the rights of pregnant women and mothers
to remain on the job without “maternal wall” bias and discrimination. We look forward to
working with the Commission to ensure that pregnant women, mothers, and fathers who wish
to engage in family caregiving can do so without jeopardizing their jobs due to caregiver
discrimination.
24
1
Prepared by Joan C. Williams, Cynthia Thomas Calvert, Patricia Davidson, and Stephanie Bornstein, with research
help from Rachel Dempsey, Hillary Hansen, and Sean Kaneshiro.
2
See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, available
at http://www.eeoc.gov/policy/docs/caregiving.html (May 23, 2007).
3
Cynthia Thomas Calvert, The Center for WorkLife Law, Family Responsibilities Discrimination: Litigation Update
2010, available at http://www.worklifelaw.org/pubs/FRDupdate.pdf (last visited Feb. 5, 2012).
4
Steven Benard et al., Cognitive Bias and the Motherhood Penalty, 59 Hast. L.J. 1359 (2007-2008); Shelley J. Correll
et al., Getting A Job: Is There A Motherhood Penalty?, 112 Am. J.Soc.1297 (2007).
5
EEOC Enforcement Guidance, supra note 2.
6
Calvert, supra note 3, at 19.
7
Most of these cases involve motions for summary judgment; the facts recited are those alleged by the plaintiff.
8
Lopez v. Bimbo Bakeries USA, Inc., No. A119263, 2009 Cal. App. LEXIS 3171, at *9-*16 (Cal. Ct. App. April 23,
2009).
9
Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998).
10
Hercule v. Wendy's of N.E. Florida, Inc., 2010 WL 1882181 (S.D. Fla 2010).
11
Advanced Med. Solutions, LLC, 2007 CAFEHC LEXIS 5 (Sept. 18, 2007).
12
Paz v. Wauconda Healthcare and Rehab. Ctr., LLC, 464 F.3d 659 (7th Cir. 2006).
13
Does v. Dist. of Columbia, 448 F. Supp. 2d 137 (D.D.C. 2006).
14
Roe v. Wade, 410 U.S. 113 (1973).
15
Stephanie Bornstein, The Law of Gender Stereotyping and the Work-Family Conflicts of Men, 63 Hastings L.J..
(forthcoming May 2012) (discussing recent cases in which male plaintiffs lost Title VII claims based on a
misapplication of the comparator “requirement”).
16
Beyst v. Pinnacle Airlines, Inc., 2008 U.S. Dist. LEXIS 45468 (E.D. Mich. 2008).
17
Wells v. City of Montgomery, Ohio, 2006 U.S. Dist. Lexis 23013 (S.D. Ohio 2006).
18
Rabe v. Nationwide Logistics, Inc., 530 F. Supp. 2d 1069 (E.D. Mo. 2008).
19
Aldridge v. Indian Elec. Coop., 2008 WL 1777480 (N.D. Okla. 2008).
20
Bates v. 84 Lumber Co., 2006 U.S. App. LEXIS 23640 (6th Cir. 2006).
21
Viera v. Costco Wholesale Corp., 2009 WL 564369, at *3 (E.D. Wash. Feb. 27, 2009).
22
Drew v. Plaza Constr. Corp., 2010 U.S. Dist. LEXIS 8699 (S.D.N.Y. 2010).
23
Hall v. City of Aurora, 2008 U.S. Dist. LEXIS 46555 (N.D. Ill. 2008).
24
Meyer v. United Airlines, Inc., 2009 U.S. Dist. LEXIS 11114 (N.D. Ill. 2009).
25
Blohm v. Dillards, Inc., 95 F. Supp.2d 473 (E.D.N.C. 2000).
26
Morgeson v. OK Interiors Corp., 2007 U.S. Dist. LEXIS 48581 (S.D. Ohio 2007).
27
Scott v. Allied Waste Serv. of Bucks-Mont, 2010 U.S. Dist. LEXIS 136202 (E.D. Pa. 2010).
28
Germain v. County of Suffolk, 2009 U.S. Dist. LEXIS 45434 (E.D.N.Y. 2009).
29
Cleveland Bd. of Edu. v. LaFleur, 414 U.S. 632 (1974).
30
Nat’l Ctr. For Women & Policing, Recruiting & Retaining Women: A Self-Assessment Guide for Law Enforcement
111 ((2001)(quoted in Karen J. Kruger, Pregnancy & Policing: Are They Compatible? Pushing the Legal Limits on
Behalf of Equal Employment Opportunity, 22 Wisc. Women’s L.J. 61, 82 (2007)).
31
Andrews-Filas v. Pier 1 Imports, (U.S.) Inc., 2006 WL 3743709, at *1 (N.D. Ill. 2006).
32
See, e.g., Serednyi v. Beverly Healthcare LLC, 2011 656 F.3d 540 (7th Cir. 2011), Young v. United Parcel Service,
Inc., 2011 WL 665321 (D Md 2011), Arnold v. N. Okaloosa Med. Corp., 2010 WL 3119886 (ND Fla 2010), Dulina v.
Hometown Nursing and Rehabilitation Center, 2010 U.S. Dist. LEXIS 142608 (MD Penn 2010), Garcia v.
Renaissance, 2010 WL 5330494 (ED Mich 2010), Serednyi v. Beverly Healthcare LLC, 2010 U.S. Dist. LEXIS 38221
(ND Ind 2010), Spees v. James Marine, Inc., 2010 U.S. App. LEXIS 16477, F.3d 380 (6th Cir. 2010), Bell v. Cabela's,
2009 WL 902266 (ND WVa 2009), Dent v. Davaco, 2009 U.S. Dist. LEXIS 120631 (ND Tex 2009), Germain v. County
of Suffolk, 2009 U.S. Dist. LEXIS 45434 (ED NY 2009), Prater v. Detroit Police Dep't, No. 08-CV-14339, 2009 WL
4576039 (ED Mich 2009), Persky v. Dolgencorp, Inc., 2008 U.S. Dist. LEXIS 13905 (WD Okla 2008), Harris v. Potter,
2007 EEOPUB LEXIS 2171 (EEOC 2007), Andrews-Filas v. Pier 1 Imports (U.S.), Inc., 2006 WL 3743709 (ND Ill 2006),
Reeves v. Swift Transportation Company, Inc., 2006 U.S. App. LEXIS 12046 (6th Cir. 2006), Stansfield v. O'Reilly
Automotive, Inc., 2006 U.S. Dist. LEXIS 31640 (SD Tex 2006), Tysinger v. Police Dep't of Zanesville, 463 F.3d 569
25
(6th Cir. 2006), Welfare v. American Airlines, Charge No. 520-2006-02955 (EEOC August 14, 2006), McQueen v.
Airtran Airways, 2005 U.S. Dist. LEXIS 37461 (ND Fla 2005), Raboin v. Mobile Infirmary, 2005 AL Jury Verdicts Rptr.
LEXIS 934 (SD Ala 2005), Walker v. Fred Nesbit Distribution Co., 2004 U.S. Dist. LEXIS 15969 (SD Iowa 2004), Flores
v. The Home Depot, Inc., 2003 U.S. Dist LEXIS 5510 (ED Penn 2003), Dimino v. New York City Transit Authority,
1999 U.S. Dist. LEXIS 14137 (ED NY 1999); Adams v. Nolan, 962 F.2d 791 (8th. Cit. 1992).
33
Jamie L. Clanton, Toward Eradicating Pregnancy Discrimination at Work: Interpreting the PDA to ‘Mean What It
Says,’ 86 Iowa L. Rev. 703, 715 (2001).
34
Joanna L. Grossman & Gillian L. Thomas, Making Pregnancy Work: Overcoming the Pregnancy Discrimination
Act’s Capacity-Based Model, 21 Yale J.L. & Feminism 15, 38 (2009).
35
Persky v. Dolgencorp, Inc., 2008 U.S. Dist. LEXIS 13905 (W.D. Okla. 2008); Grossman & Thomas, supra, at 34.
36
Villaneuva v. Christiana Care Health Services, Inc., 2007 WL 188111, *2 (D. Del.).
37
Flores v. The Home Depot, Inc., 2003 U.S. Dist. LEXIS 5510, *2.
38
Amerson v. Pinkerton Security, 2006 U.S. Dist. Lexis. 38671 (E.D. Mich. 2006).
39
Wiseman v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 48020 (D. Kan. 2009).
40
Harris v. Potter, 2007 EEOPUB LEXIS 2171 (EEOC 2007).
41
Serednyj v. Beverly Healthcare, 656 F.3d 540 (2011).
42
29 CFR Section 1630, App. Sec. 1630.2(h) (2008).
43
Id. at Section 1630.2 (j).
44
29 CFR Section 1630, (Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities
Act) Section 1630.2(h) (2011).
45
Id.
46
29 CFR Section 1630.2(j)(1)(i) (2011).
47
29 CFR Section 1630, (Appendix to Part 1630-Interpretive Guidance on Title I of the Americans With Disabilities
Act) Section 1630.2 (j)(i)(vii) (2011).
48
29 CFR Section 1630.9 (2011).
49
See ADAAA Section 3 (2)(B); see also 154 Cong. Rec. S8350 (daily ed. Sept. 11, 2008 (Statement of Sen. Harkin).
50
ADAAA Section 3(2)(B); 29 CFR Section 1630.2(h)(1)(i)(1)(ii) (2011).
51
29 CFR Section 1630.9; Section 1630.15; see also Sections 1630.2 (p); (r) (2011).
52
29 CFR Section 1630.2(p) (2011).
53
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
54
Id.
55
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 at 283 n. 11 (1976).
56
Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191, 193 n.
1 (2009).
57
Id. The author’s database search included a variety of claims (i.e., Equal Pay Act, Title VII) raised in federal and
state cases. See Sullivan, supra note 56, at n. 1 details and citations.
58
Id.
59
Abdu-Brisson v. Delta Air Lines, Inc. 239 F. 3d 456, 468 (2d Cir. 2001).
60
Suzanne Goldberg, Discrimination By Comparison, 120 Yale L.J. 728 (2011); Ernest F. Lidge III, The Courts’ Misuse
of the Similarly Situated Concept in Employment Discrimination Law, 67 Miss. L. Rev. 831 (2002); Sullivan, supra
note 56, passim (arguing against court’s use of an “almost twin” test for comparators.
61
Lidge, supra note 60, at 849 – “In six circuits—the Fourth, Fifth, Seventh, Ninth, Eleventh, and District of
Columbia—the courts generally impose [a similarly situated] requirement. Three circuits—the First, Second, and
Tenth—for the most part reject the requirement. In three circuits—the Third, Sixth, and Eighth—the case law goes
both ways.”
62
Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005).
63
Olmstead v. L.C. by Zimring, 527 U.S. 581, 617 (1999) (Thomas, J., dissenting).
64
See, e.g., Calvert, supra note 3; Joan C. Williams & Stephanie Bornstein, The Evolution of “FReD”: Family
Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 Hast. L.J. 1311
(2008).
26
65
See Joan C. Williams & Cynthia Thomas Calvert, WorkLife Law’s Guide to Family Responsibilities Discrimination 131 – 1-37 (2006).
66
See, e.g., Reed v. Reed, 404 U.S. 71 (1971).
67
Benard, et al, supra note 4.
68
Complaint, Pruente v. Home Depot U.S.A. Inc., 07-cv-2133, D. Kan. (Mar. 28, 2007)
69
Complaint, Clarke v. AmerisourceBergen Corp., 04-cv-4332, E.D. Pa. (Sept. 13, 2004).
70
42 U.S.C. § 200e(k).
71
See Victoria Pynchon, Your Boss Can Fire You For Breastfeeding in Texas,
http://www.forbes.com/sites/shenegotiates/2012/02/09/your-boss-can-fire-you-for-breast-feeding-in-texas/;
Nicole Kennedy Orozco, “Pumping At Work: Protection From Lactation Discrimination in the Workplace,” 71 Ohio
L. J. 1282 (2010); Alison A. Reuter, Subtle But Pervasive: Discrimination Against Mothers and Pregnant Women in
the Workplace, 33 Ford. L. Rev. 1369, 1382-85; Christine Moore, The PDA Fails to Deliver: Why Nalco and Wallace
Cannot Co-Exist, and a New Standard for Defining a ‘Related Medical Condition,’ 44 U.S.F.L. Rev. 683,694 -703
(2010)(all citing cases).
72
Of course, if the seriously ill employee needs accommodation, he may well be entitled to it under the ADAAA if
he can perform the essential functions of the job.
73
EEOC Enforcement Guidance, supra note 2, at II.A.1.
74
See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
75
538 U.S. 721 (2003), at 736.
76
M.K. Judiesch & K.S. Lyness, Left Behind? The Impact of Leaves of Absence on Managers’ Career Success, 42
Academy of Management J. 641 (1999).
77
J.H. Wayne & B.L. Cordiero, Who is a Good Organizational Citizen? Social Perception of Male and Female
Employees Who Use Family Leave, 49 Sex Roles 233 (2003); T.D. Allen & J.E.A. Russell, Parental Leave of Absence:
Some Not So Family-Friendly Implications, 29 J. App. Soc. Psych. 166 (1999); A.B. Butler & A. Skattebo, What Is
Acceptable for Women May Not Be for Men: The Effect of Family Conflicts With Work on Job Performance Ratings,
77 J. Occup. & Org. Psych. 553 (2004). But see S. Coltrane, E.C. Miller, T. DeHaan & L. Stewart, Fathers and the
Flexibility Stigma, __J. Soc. Issues___(2012)(forthcoming)(demographic study reporting that the flexibility stigma is
relatively gender neutral, noting limitations of the available data).
78
L. A. Rudman & Kris Mescher, Penalizing Men Who Request a Family Leave: Is Flexibility Stigma a Femininity
Stigma?, __J. Soc. Issues ___(2012)(forthcoming).
79
J. A. Vandello, V.E. Hettinger, J.K. Bosson & J. Siddiqi, When Equal Isn’t Really Equal: The Masculine Dilemma of
Seeking Work Flexibility, __J. Soc. Issues___(2012)(forthcoming).
80
J.L. Berdahl & S. H. Moon, Workplace Mistreatment of Middle Class Workers Based on Sex, Parenthood and
Caregiving, __J. Soc. Issues___(2012)(forthcoming).
81
S. Bornstein, Concluding Essay: Legal and Policy Implications of the Flexibility Stigma, __J. Soc. Issues
___(2012)(forthcoming).
82
See, e.g., Coleman v. B.G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1204 (1997)(“Gender-plus
plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender.”); Ann
C. McGinley & Jeffrey W. Stempel, Condescending Contradictions, Richard Posner’s Pragmatism and Pregnancy
Discrimination, 46 Fla. L. Rev. 193 (1994).
83
Joan C. Williams, Unbending Gender: Why Family and Work Conflict and What To Do About It 81 (2000).
84
Brian Headd, The Characteristics of Small Business Employees, 18 Monthly Labor Review 13 (April 2000).
85
Sullivan, supra note 56, at 216.
86
Id.
87
Id. at 217-19.
88
Id. at 219.
89
McQueen v. Airtran Airways, Inc., 2005 U.S. Dist. LEXIS 37461, *22 (N.D. Fla. 2005).
90
Coleman v. Donahoe, 2012 U.S. App. LEXIS 241 at *17 (citing Henry v. Jones, 507 F.3d 558, 564 (7 th Cir. 2007))
(7th Cir. 2012).
91
Id. at *51-52.
92
See, e.g., Young, 2011 U.S. Dist. LEXIS 14266.
27
93
Felix, Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).
See Claire-Therese D. Luceno, Maternal Wall Discrimination: Evidence Required for Litigation and Cost-Effective
Solutions for a Flexible Workplace, 3 Hast. Bus. L. J. 157, 163-65 (2006).
95
Correll et al., supra note 4.
96
Stephanie Bornstein, Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers 11 (2011),
11, available at http://www.worklifelaw.org/pubs/PoorPregnantAndFIred.pdf.
94
28