Meeting of April 17, 2007, Washington D.C. on Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Laws
Good morning, Madam Chair, Madam Vice-Chair, and Commissioners Ishimaru and Griffin. Thank you for the opportunity to participate in this meeting today. My name is Joan Williams, and I am a law professor at the University of California, Hastings College of the Law and the Director of the Center for WorkLife Law. I am the author of several books, including Unbending Gender: Why Family and Work Conflict and What to Do About It, Solving the Part-Time Puzzle: A Law Firm’s Guide to Balanced Hours, and a treatise called WorkLife Law’s Guide to Family Responsibilities Discrimination. I have studied and written extensively on issues related to work/life balance, gender discrimination, the “maternal wall” (job bias encountered by mothers), and family responsibilities discrimination (“FRD”).
Family responsibilities discrimination: hot topic in employment law
Family responsibilities discrimination is, very simply, discrimination against employees based on their obligations to care for family members. It includes pregnancy discrimination, discrimination against mothers and fathers, and discrimination against workers caring for sick spouses or aging parents.
FRD is the current hot topic in employment law. In the last year, more than 100 articles were published about FRD, including articles in Kiplinger’s, HR Magazine (by the Society for Human Resource Management), the ABA Journal, Business Insurance, the New York Times, and the Christian Science Monitor. FRD has been the subject of stories on CBS, ABC, CNN, and NPR and more than six dozen blog entries. In addition, seminars for lawyers on FRD have been, or are being, sponsored by ALI-ABA, the Association of Corporate Counsel, the Pennsylvania Bar Institute, and Lorman Education Services. This summer, I will be speaking about FRD at the annual conferences of both the National Employment Lawyers’ Association and the ABA Section on Labor and Employment.
The Center for WorkLife Law (“WLL”) works with employers and employees to identify and eliminate FRD. Given the prevalence of FRD in the workplace and its profound impact on employees’ lives and companies’ bottom lines, it is an issue that can be addressed only by involving all of the stakeholders. At WorkLife Law, we listen to employees who are facing FRD and try to help them resolve their situations. We also work with businesses, to show them how avoiding FRD improves their profitability—not only because it prevents costly lawsuits, but also because inexpensive prevention steps, such as training their supervisors regarding FRD, can reduce attrition and enhance productivity. To help us in this work, WLL employs both plaintiff- and management-side employment attorneys.
Every employee and every employer will benefit if FRD can be prevented in the workplace. Those benefits will be realized more quickly if employers and employees have guidance from the EEOC about what constitutes FRD and how the law addresses it.
I’d like to begin by providing some background information about how and why FRD arises in the workplace. I will then discuss some of the cases involving FRD fact patterns and the need for policy guidance. I will conclude with some recommendations for businesses about how to prevent FRD.
Unlike glass ceiling bias, caregiver bias affects employees throughout the social spectrum
For several decades, the focus in gender discrimination has been on glass ceiling issues: the difficulties women face in reaching the highest level jobs. Glass ceiling problems, by definition, typically affect professional/managerial-class women. In sharp contrast, employees throughout the social spectrum encounter FRD. Plaintiffs include employees in low-wage jobs, including grocery clerks1 and call center staff;2 mid-level jobs such as property manager,3 car saleswoman,4 other sales staff,5 and medical technician;6 blue-collar jobs such as police officer,7 prison guard,8 and electrician;9 pink-collar administrative assistants10 and receptionists;11 women in the traditionally female professions such as teaching12; and women in professional/managerial jobs traditionally held by men, such as hospital administrator,13 attorneys,14 and executive.15 Plaintiffs have included not only white women, but also women of color,16 including Latinas.17 In other words, some FRD plaintiffs include many employees for whom “opting out” is not an option, and some for whom losing their jobs means living in poverty.
Caregiver bias affects men as well as women and stems from workplace norms designed around conventional masculinity
FRD stems, at its core, from what experts call “workplace/workforce” mismatch.18 Most good jobs still assume an ideal worker who starts to work in early adulthood and works, full time and overtime as needed, for roughly 40 years straight, retiring abruptly at age 65. This workplace model was designed for a workforce of male breadwinners whose wives took care of family and household matters.
This model does not reflect today’s workforce. Today, nearly 70% of families have all adults in the labor force. 19 Children need daily care, not only while they are infants, but well into adolescence.20 Most of this care is performed by family members. One out of three American families with children under the age of six handle child care through “tag teaming,” in which parents works opposite shifts, so that one can care for the children while the other is at work.21
Many American families also bear a heavy load of elder care: one in four families takes care of elderly relatives.22 In addition, modern medicine helps many more patients survive serious and chronic illnesses, and many families struggle but care for ill family members because hospitals now discharge patients long before they used to.
All of these factors mean that many adults have trouble living up to the old-fashioned ideal-worker norm because they lack the free-flow of domestic support (i.e., a housewife) that traditionally supported the ideal worker’s constant availability for uninterrupted work. As a result, one study found that caregiving responsibilities now interrupt one out of every three work days.23
One result of the ideal-worker standard, defined around men’s bodies (they need no time off for childbearing) and men’s traditional life patterns (mothers still do 80% of routine child care24), is that stereotypes arise in everyday workplace interactions. These stereotypes reflect the fact that jobs are gendered: when we picture an auto mechanic, we think of a man; when we picture a nurse, we think of a woman, stereotypes that are constantly reinforced by the demography of those jobs.25 Such stereotypes have a negative effect on women. Eighty-one percent of American women become mothers during their working lives,26 and becoming a mother makes gender salient (“jump out”), so that even women who were seen simply as workers before they had children may well find themselves perceived through a gender lens afterwards.
The masculine ideal worker norm can create workplace challenges not only for mothers, but also for fathers. Fathers are not adversely affected as long as they live (or pretend to live) the life pattern of a traditional breadwinner. Such men typically encounter a job boost from fatherhood: one study found that they are held to lower performance and punctuality standards than men without children.27 However, if fathers take on the level of caregiving traditionally assumed by women, often they encounter not only the negative competence assumptions mothers trigger (discussed in more detail below); they also are treated as less manly because of the ways conventional masculinity is intertwined with the “provider” role.28 Industrial-organizational psychologists have documented that fathers who took a parental leave were recommended for fewer rewards and were viewed as less committed,29 and that fathers who had even a short work absence due to a family conflict were recommended for fewer rewards and had lower performance ratings.30
WLL is aware of situations in which men have been denied paid parental leave that is routinely given to women. We also know of two situations in which men’s employment was terminated because they became fathers, and one in which a man had a vasectomy in an attempt to end caregiver discrimination that was jeopardizing his job—a job the family sorely needed. A classic example of the stereotyping experienced by men is found in Knussman v. Maryland,31 in which the manager of the medical leave and benefit section of the agency told a male police officer that his wife must be “‘in a coma or dead,’ for [him] to qualify as the primary care giver” under the employer’s “nurturing leave” policy.32
Maternal wall bias is a form of gender stereotyping that affects women of different racial groups differently
Social scientists have documented that the most prominent form of caregiving—motherhood—is a key trigger for gender stereotyping. Motherhood causes women to be viewed through the lens of stereotypes. This helps explain why women who are on the superstar track often find their careers derailed once they have children. Bias against mothers often is very open. People generally know not to say, “This isn’t a suitable job for a woman,” but the case law contains many instances where employers make statements such as that mothers should “do the right thing” and stay home with their children33 or that “it is not possible…to be a good mother and have this job.”34 Maternal wall stereotyping is so very open because many people don’t see it as discrimination. Pointing out that it is would be one key role for EEOC policy guidance.
Maternal wall stereotypes vary by race, although too little research exists to draw definitive conclusions. Commentators have noted that white mothers who stay home with children typically are depicted as selfless,35 but African-American mothers who do the same often are seen as lazy and self-indulgent. 36 Unfortunately, no published lab studies by social psychologists exist of mothers of color, but sociologist Ivy Kennelly studied low-income African-American mothers in Atlanta and documented that maternal wall stereotypes differ significantly by race. When mothers involved in her study had attendance problems, their employers tended to see them as unpromotable because they were not dependable; but when a mother had a good attendance record, she still tended to be seen as unpromotable because her good performance often was interpreted as evidence that she was a “desperate” single mother rather than a conscientious worker. Kennelly noted that African-American mothers are assumed to be single mothers, even when they are married.37 Professional African-American and Latina women also report anecdotally that they feel that motherhood would hurt their chances for advancement because of an unspoken sense that women of their communities have “too many children.”38
Maternal wall stereotypes differ from racial39 and glass ceiling bias
Maternal wall stereotypes differ from the stereotypes most familiar to lawyers in three distinct ways. First, in sharp contrast to glass-ceiling gender bias—which today is typically subtle and implicit—bias against mothers often is open and explicit. Second, in contrast to racial stereotypes’ unremittingly negative valence, maternal wall stereotypes sometimes have a positive valence. Finally, lawyers’ assumption that stereotypes reflect “overbroad generalizations”—i.e., that a given woman will behave as most women do—overlooks the fact that women who behave as women usually do can also be the targets of stereotypes. Each of these three differences requires further discussion.
Maternal wall stereotypes often are not subtle. First, in an era when glass-ceiling gender bias typically is subtle and veiled, maternal wall bias often is explicit and open. This fact emerges clearly in the case law. In Bailey v. Scott-Gallaher, Inc.,40 when the plaintiff phoned to arrange her return from maternity leave, her boss fired her, saying that she was “no longer dependable since she had delivered a child; that [her] place was home with her child; that babies get sick…and [she] would have to miss work.” In Santiago-Ramos v. Centennial P.R. Wireless,41 another mother was shown a job profile that explicitly excluded married women and mothers on the grounds that the company “preferred unmarried, childless women because they would give 150% of the job”; she faced persistent questioning about whether she could do her job effectively after having a second child, as well as questions about how her husband was managing given that she was not home to cook for him. In Sheehan v. Donlen Corp.,42 a mother’s supervisor exclaimed “O my God, she’s pregnant again!” and told her “You’re not coming back after this pregnancy”—comments that certainly made causation easy to prove. In another case, Trezza v. The Hartford, Inc.,43 a woman who consistently received excellent job evaluations abruptly ceased to be promoted after she had children. A senior company official complained to her of the “laziness and incompetence of women who are also working mothers”; another told her “I don’t see how you can do either job well”; she also faced speculation that, if her husband (also a lawyer) won another big case, she would “be home eating bon bons.”44 These cases, and many others, suggest that although most people now know not to say “this is an unsuitable job for a woman,” many do not know that it is equally illegal to take negative job actions based on the belief that a given job (or any job) is unsuitable for a mother. Whereas researchers have argued that much racial bias today is subtle and implicit,45 maternal wall bias often is open and explicit. It is 1970s style discrimination in the new millennium. EEOC guidance could help solve this problem.
Maternal wall stereotypes sometimes have a positive valence. Racial stereotypes tend to be uniformly negative (“all black men are felons”), reflecting what social psychologists call the “prejudice as antipathy” model formulated in the 1950s.46 In sharp contrast, stereotypes associated with motherhood sometimes have a positive valence.47 An example is the expectation that “a good mother is always available to her children,” 48 which gives rise to such statements as this is no job for someone with “little ones at home,”49 and “Do you want to have babies or do you want a career here?” (said to a civil engineer who later won a $3 million jury trial that was reversed on appeal).50 This type of stereotyping, called “role incongruity,” starts out with the positive stereotype of a good mother—but ultimately sends the message that no mother is a desirable employee.
Another apparently flattering form of stereotyping, called “benevolent sexism,” occurs when someone assumes that an individual mother’s behavior will conform to traditionally feminine patterns. For example, in Lust v. Sealy,51 an employer denied a mother a promotion on the assumption that she would be unable to move her family to a new city. In Stern v. Cintas Corp.,52 a mother was not given a sales position because her employer assumed she did not want to travel after having her baby, although she never suggested that was the case. Benevolent stereotyping may be a kinder, gentler mode of bias, but it still has the effect of denying the mother in question job opportunities.
Stereotypes can negatively affect women who behave as women typically do—not just women who don’t. Lawyers’ understanding of stereotypes stems from the Equal Protection cases of the 1970s.53 The type of stereotyping involved in those cases was “statistical discrimination”: discrimination based on “an overbroad generalization” that a given woman will behave as most women do.54
What most lawyers do not realize is that stereotypes also can operate to disadvantage women who do behave as women typically do. Maternal wall stereotypes disadvantage women because they link demographically commonplace behavior—like having a child—with strong negative competence assumptions. Social psychologists have long recognized that, although stereotypes can act as overbroad generalizations, they also operate in different ways.55 To clarify this point, it may be helpful to contrast a classic “overbroad generalization” case with a classic maternal wall case.
A classic overbroad generalization case is Frontiero v. Richardson,56 which involved a woman member of the uniformed services who was the primary breadwinner in her family. She was disadvantaged when she could not claim her husband as a dependent, because the fringe benefit system at issue embedded the assumption that all men were breadwinners, not dependents. Thus Sharron Frontiero was disadvantaged by an overbroad generalization—inaccurate in her case—that her husband was the breadwinner and she was the dependent.
A classic maternal wall case is Kerzer v. Kingly Manufacturing,57 which involved a clothing designer. Kerzer did what most women do: she got pregnant. But she was stereotyped nonetheless, when her employer commented that her pregnancy “was a sign that she was lazy” and fired her. The stereotyping in Kerzer stemmed not from an overbroad generalization but from the negative competence and commitment assumptions that are culturally intertwined with motherhood. Thus, as contemporary social psychologists recognize (but contemporary lawyers often fail to recognize), stereotypes can negatively affect women who behave as women typically do—not just women who don’t.
Recent studies have documented that the negative competence and commitment assumptions triggered by motherhood are very strong. A Cornell University study compared identical resumes in which the only difference was that one signaled that the applicant was a mother while the other signaled that the applicant was a non-mother. The study found that, when compared to non-mothers, similarly qualified mothers were significantly less likely to be hired (only 47% recommended for hire vs. 84% of non-mothers), were offered an average of $11,000 less in salary, and were held to higher standards for both performance and punctuality.58 Earlier studies document that, although “businesswomen” are rated as highly competent, similar to “businessmen,” “housewives” are rated as extremely low in competence, alongside such highly stigmatized groups as the elderly, blind, “retarded,” and disabled (to quote the words tested by researchers). 59 “Working mothers trade perceived competence for perceived warmth.”60 Competence ratings predict interest in hiring and promoting workers.61
As Kerzer shows, these misplaced assumptions have concrete workplace consequences. To quote a Boston lawyer, “When I returned from maternity leave I was given the work of a paralegal, and I wanted to say: ‘Look, I had a baby, not a lobotomy.’”62 Stereotypes disadvantaged this woman not because she failed to behave as most women do but because she did behave as most women do by having a baby. This jeopardized her career because, once motherhood became salient, negative competence assumptions associated with motherhood were triggered. In short, this lawyer left work a “businesswoman,” but returned a “housewife.”
Key triggers for maternal wall bias
Maternal wall stereotypes typically are triggered at one of three points: when women get pregnant, return from maternity leave, or go on part-time or flex schedule. Some theorists see the negative assumptions about mothers as a purest case of gender bias; others see motherhood as a subgroup stereotype.63 Maternal wall stereotypes embed very specific assumptions about mothers who work part-time: they are seen as less competent than full-time workers and less warm than housewives.64 This study helps explain sociologists’ finding that women who use family-friendly policies encounter stigma that leads to lower wage rates.65 These studies help explain why researchers have documented a heavy stigma associated with the use of flexible schedules.66
Key court decisions for FRD plaintiffs
In 1989, the U.S. Supreme Court held that basing workplace decisions on gender stereotypes is sex discrimination.67 In the past four years, the Supreme Court has decided two very pro-plaintiff cases that are best understood as FRD cases. In the first, Nevada v. Hibbs, 68 the late Chief Justice William Rehnquist astonished many commentators when he upheld a Family and Medical Leave Act (FMLA) lawsuit for money damages by a state employee. Despite the fact that what was involved was FMLA leave, not an antidiscrimination lawsuit, Chief Justice Rehnquist lavished attention on the role of stereotypes surrounding work/family issues. He said:
Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men….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.69
Chief Justice Rehnquist, who is reported to have left the Court to pick up his grandchild from school on days when his daughter, a single mother, could not do so,70 observed that the “fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.”71
A second case that astonished commentators was the Supreme Court’s opinion in Burlington Northern v. White,72 which clarified the law with respect to retaliation in Title VII cases. While Burlington Northern was not a FRD case, it expressly adopted the Seventh Circuit’s retaliation test set out in an earlier FRD case, Washington v. Illinois decided in 2005 by Seventh Circuit judge Frank Easterbrook. In that case, a plaintiff who complained of race discrimination was allegedly retaliated against by having her flex schedule taken away: she worked from 7 a.m. to 3 p.m. in order to get home in time to care for her son, who had Down’s syndrome, after he returned from school. The Burlington Northern court not only adopted the standard articulated by the Washington v. Illinois court; it also expressly included language related to caregiver bias, noting that for purposes of determining what constitutes an “adverse employment action”, “[c]ontext matters.” Citing the Washington case, the court added, “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”73
Several other cases are worth noting. In Back v. Hastings-on-Hudson, 74 the Second Circuit expressly rejected the employer’s contention that Back had to present evidence of a similarly situated employee outside the protected category in order to prevail. It held that a plaintiff with evidence of maternal wall stereotyping could get to trial even in the absence of evidence that a similarly situated man (a “comparator”) had been treated differently. In Lust v. Sealy,75 a jury verdict for the plaintiff was upheld in an opinion written by Judge Richard Posner that relied on evidence of implicit bias, rather than comparator evidence.
Many cases show that employers do not understand that Title VII prohibits them from requiring women to choose between motherhood and a career—a choice that men are virtually never forced to make. In several cases, women have been told to have abortions if they want to keep their jobs.76 In one of these, Bergstrom-Ek, when an employee refused her supervisor’s offer to drive her to an abortion clinic and pay for her abortion, the supervisor allegedly made negative remarks about her pregnancy, threatened to push her down the stairs, forced her to lift more heavy boxes than she had had to do before she became pregnant in an effort to induce a miscarriage, and told her she could not move up in the company if she had a baby because she could not take care of a child and manage a career.77
Similarly, the case law shows that many employers do not understand that it is illegal to deny promotions to women simply because they have children. In Trezza78 and Lust,79 employers told women that they were not even considered for promotion because they had children at home and the employers assumed they were therefore not interested in advancement. In another case, a woman who was a superstar at work, a civil engineer who worked long hours and received several promotions, was warned not to have children if she wanted a career.80 When she ignored that warning, although she continued to work long hours and perform in an exemplary manner, she was systematically frozen out of promotion opportunities.
Some employers have been blatant in their harassment of women simply because they are mothers. For example, Walsh v. National Computer Systems81 involved a saleswoman who was considered a “top performer” and had received multiple promotions, regular raises, and consistently favorable performance evaluations throughout her employment. Then she had a difficult pregnancy that required frequent doctor’s appointments. She was an exempt employee, but was required to account for and make up her time off—even though others in her job category were not. Her workload was increased; others’ were not. Other employees were allowed time off to go to a craft fair; she was not. Her supervisor refused to allow her to leave to pick up her sick child from daycare and allegedly threw a phone book at Walsh with a direction to find a pediatrician who was open after hours. Her supervisor’s repeated comments about her pregnancy and motherhood showed clearly that Walsh’s motherhood was at the root of the harassment.
Another harassment case is Gallina v. Mintz Levin,82 which involved a young female attorney was succeeding in her new job until she brought her child with her to work one Saturday. Her boss was upset that she had not told him in her interview that she had a child. From then on, he treated her rudely and called her names. He told her a story about how pregnant women don’t make partner, and she was criticized for not being as committed as the other lawyers in the office. When she worked with attorneys in other offices of the same firm, her work received positive evaluations, but the attorneys in her office gave her negative evaluations and thereafter terminated her. Alarmingly, the boss who was upset by her motherhood was a law firm partner who specializes in employment law; again, policy guidance could have avoided this outcome.
Although many of the cases I’ve discussed involve what I call “loose lips” comments, it is important to note that such smoking gun evidence is not necessary for a plaintiff to succeed in an FRD case. Indeed, many of the cases in which plaintiffs have succeeded involved more subtle discrimination. 83
It is also important to note that there has been a dramatic 400% increase in FRD cases in the past decade, and that there is a sharply higher success rate in FRD cases than in other types of employment discrimination cases. 84 At WorkLife Law, we have documented nearly 1,000 FRD cases, almost 600 of which have been decided just since 2000.
FRD litigation is extremely complex, which makes life difficult for employers
No wonder employers, and their lawyers, have begun to worry about the scope of potential liability for FRD. FRD litigation is very complex: cases have arisen under 17 legal and common law theories, including Title VII, the Americans with Disabilities Act, and the Equal Pay Act, as well as the FMLA, ERISA, and various state statutes and common law theories.85 This makes life difficult for employers, who are not in a position to protect themselves through checklists that instruct Human Resources personnel on how to avoid potential lawsuits. Indeed, one defense-side lawyer—Judith Droz Keyes of Davis Wright Tremaine LLP, who attended a WLL training for management employment lawyers—expressed the opinion that FRD law is so complex that her clients would be best served if FRD law were clarified and simplified. Guidance is one effective way to accomplish this goal. To quote Ms. Keyes:
Most employers want to do the right thing. They also want to follow the law. Often, it feels right to be [responding to] employees’ family obligations, especially the obligations of parents with young children. At the same time there is concern…that, “No good deed will go unpunished”: if a voluntary accommodation is made, it will become a binding precedent….It would be very helpful for employers to have clear guidelines so they know the extent of their obligation and employees will know the extent of their obligation.86
For those of us who work at WorkLife Law, as we continue our research and talk with both employers and employees about FRD, we have come to see that both sides view FRD as a complex and challenging area of the law. Employers are confused about what they can and cannot do and about whether the law requires them to provide part-time schedules or mandates paid paternity leave.87 And we are seeing a lot of employment cases that should settle but don’t because management-side attorneys do not know how to evaluate the strength of the case before them. We view all of this as evidence of the need for policy guidance from the EEOC in order to clarify the situation for employers and employees alike.
I would like to discuss briefly the issues that we believe are most important for inclusion in the policy guidance, if the Commission decides to issue guidance.
First, we would urge the Commission to set forth a definition and provide examples of FRD. Just as it was necessary to educate the public about sexual harassment when it was first recognized as a violation of Title VII, it is now necessary to educate the public about how FRD violates Title VII. At WorkLife Law, our working definition of FRD is “discrimination against employees based on their obligations to care for family members.” We are careful not to limit FRD to mothers, particularly in light of the growing evidence that as today’s men become more involved in their families’ lives, they are also facing sex-based stereotyping that impacts their careers.
It would also be helpful to provide a short list of the ways FRD typically is manifested in the workplace. These include:
As is readily apparent, FRD goes well beyond discrimination against pregnant women. For that reason, we would urge the Commission, in addition to issuing policy guidance about FRD, to expand its data gathering beyond pregnancy discrimination cases to include cases in which men and women have been treated differently or suffered a disadvantage because of their sex-based roles as caregivers.
Second, we would urge the Commission to issue policy guidance that highlights and clarifies recent holdings in FRD cases:
FRD cases also arise under the Americans with Disabilities Act
Many employers are not aware that they are prohibited from discriminating against an employee caring for a disabled person under the Americans with Disabilities Act (ADA).102 Such employees are not entitled to accommodation, but they are protected from discrimination based on their association with an individual with disabilities.
Like other forms of FRD, discrimination against adults caring for disabled children can be quite open, as when a teacher, against her will, was transferred from full-day teaching position to half-day teaching, half-day resource aid position following the birth of her disabled son,103 and when a defendant bought a company and hired every employee of that company except for the mother of a disabled child.104 In another case, an employer informed a mother with twins and a son with Down’s syndrome that having a disabled son made her unpromotable.105
In 2005, the Commission issued a question-and-answer document about the ADA “association clause” that was very helpful. We would ask that the Commission include information about the association clause in policy guidance as well, because the questions and answers did not fully address the type of association discrimination demonstrated in the cases above and seen in situations we are aware of through our work at the Center: situations in which employees associated with disabled family members are not hired or are terminated or harassed because their employers believe they will not be productive employees, will have poor attendance, or will cost the company too much in medical insurance premiums.
Best practices to help employers avoid FRD
Finally, I would like to note that WLL provides a model policy, as well as best-practice recommendations, for employers who want to prevent FRD in their workplaces. These include:
In conclusion, the sharp recent rise in employers’ potential liability for FRD makes the moment ripe for the EEOC to issue guidance on caregiver discrimination. Such guidance would help employers, who currently are confused about their potential liability and what measures they should take to avoid lawsuits and dissension. Guidance could be the first step towards helping employers create effective Human Resource checklists and other tools that would help employers and employees alike.
Once again, I thank you for the opportunity to testify today.
1 Carter v. Shop Rite Foods, Inc., 470 Supp. 1150 (N.D. Tex. 1979)(awarding $330,000 against employer whose manager refused to hire women for managerial positions because of their child care responsibilities).
2 Nielson v. New Cingular Wireless, 2006 U.S. Dist. LEXIS 6290 (D. Ore. 2006)(denying summary judgment to employer where call center employee left work to care for pregnant wife).
3 EEOC v. JPI Partners, Case No. CIV 02 2643 (D. Ariz. 2005)(consent decree; pregnant manager criticized and set up for termination).
4 Plaetzer v. Borton Automotive, Inc., 2004 WL 2066770 (D. Minn. 2004)(denying employer’s summary judgment motion where saleswoman’s performance had been hyper-scrutinized, and she was told that she should do the right thing and stay home with her children).
5 Neis v. Fresnius USA, Inc., 219 F. Supp. 2d 799 (E.D. Mich. 2004)(holding by jury in favor of women whose co-worker made such remarks as “women should be home raising babies” that employer did not address; court ordered new trial).
6 Flores-Suarez v. Turabo Medical Center Partnership, 15 F. Supp. 2d 79 (D.P.R. 2001)(holding for plaintiff in constructive discharge case where plaintiff was fired while on bed rest; reinstated, but isolated, denied time off for medical appointments, and had supervisor demand more of her than of her co-workers).
7 Lehmuller v. Sag Harbor, 944 F. Supp. 1087 (E.D.N.Y. 1996)(denying employer’s summary judgment motion when employer granted light duty to males for off-the-job injuries but denied light duty for only female officer, who was pregnant); Tomaselli v. Upper Pottsgrove Township, 2004 U.D. Dist. LEXIS 25754 (E.D. Pa. 2004)(holding constructive discharge where plaintiff was harassed while pregnant and after her child was born).
8 Gorski v. New Hampshire Dept. of Corrections, 290 F.3d 466 (1st Cir. 2002)(reversing dismissal of suit where mother’s supervisor said “no one is going to want you because you are pregnant” and asked her “[w]hy did you get pregnant, with everything going on, why do you want another child?”).
9 Bergene v. Salt River Project, 272 F.3d 1136 (9th Cir. 2001)(holding retaliatory motive where plaintiff was harassed, demoted, and threatened with additional retaliation if she held out for too much money in settling her PDA suit).
10 Templer v. Hard Rock Construction Co., 2003 US Dist. LEXIS 1028 (E.D. La. 2003)(plaintiff demoted; supervisor told her it was because she was pregnant); Abraham v. Graphic Arts International, 660 F.2d 811 (D.C. Cir. 1981)(striking down employer contractual provision precluding leave in excess of ten days as applied to pregnant woman; disparate impact on women); Fisher v. Rizzo Bros. Painting Contractors, Inc., 2005 U.S. LEXIS 31901 (E.D. Ky. 2005)(administrative assistant laid off, and not rehired, following pregnancy).
11 Van Diest v. Deloitte & Touche, 2005 U.S. Dist. LEXIS 22106 (N.D. Ohio 2005) (plaintiff laid off following leave to care for her sick mother); Hill v. Dale Electronics Corp., 2004 U.S. Dist. LEXIS 25522 (S.D.N.Y. 2004) (when receptionist announced she was pregnant, complaints were trumped up and she was fired).
12 McGrenaghan v. St. Denis School, 979 F. Supp. 323 (E.D. Pa. 1997)(teacher involuntarily transferred from full-day teaching position to half-day teaching, half-day resource aid position following the birth of her disabled son).
13 Timothy v. Our Lady of Mercy Medical Center, 2004 WL 503760 (S.D.N.Y. March 12, 2004)(holding retaliation against plaintiff, a star performer, who was subjected to a pattern of racial and sex discrimination after she returned from maternity leave, including losing her office and computer, having job duties taken away, and being excluded from meetings).
14 Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667 (S.D.N.Y. 1995)(law firm associate became pregnant and department chairman allegedly said “With all these pregnant women around, I guess we should stop hiring women”; when she returned from maternity leave, the firm allegedly would not give her work, criticized her attitude, and terminated her); Halbrook v. Reichold Chemicals, Inc., 735 F. Supp. 121 (S.D.N.Y. 1990)(denying employer summary judgment where in-house counsel forced to strike a bargain, where she would stop raising women’s issues in return for which management would stop harassing her about her maternity leave), later proceeding, 766 F. Supp. 1290 (S.D.N.Y. 1991); Trezza v. The Hartford, 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998)(woman with excellent performance evaluations not promoted after she had children).
15 Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2004)(executive vice-president’s position was eliminated while she was on maternity leave and she was told not to apply for a new position); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) (holding pretextual reason given for firing plaintiff, the only top executive who was female, based on stereotyping).
16 Washington v. Illinois, 420 F.3d 658 (7th Cir. 2005)(woman who filed a race discrimination complaint was retaliated against by removing the flexible schedule she needed to take care of disabled son); Timothy v. Our Lady of Mercy Medical Center, 2004 WL 503760 (S.D.N.Y. March 12, 2004)(woman of color allegedly demoted in favor of white women with children, and men with and without children).
17 Santiago-Ramos c. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000)(Latina woman fired); Flores-Suarez v. Turabo Medical Center Partnership, 15 F. Supp. 2d 79 (D.P.R. 2001)(Latina woman forced to resign).
18 Kathleen E. Christensen, Foreword to WORK, FAMILY, HEALTH, AND WELL-BEING ix, ix (Suzanne Bianchi, Lynne M. Casper & Rosalind Berkowitz King eds., 2005).
19 Karen Kornbluh, The Parent Trap, THE ATLANTIC MONTHLY, Feb. 1, 2003, at 111.
20 BARBARA SCHNEIDER & DAVID STEVENSON, THE AMBITIOUS GENERATION: AMERICA’S TEENAGERS, MOTIVATED BUT DIRECTIONLESS 145 (1999).
21 Harriet B. Presser, Toward a 24-Hour Economy, 284 SCIENCE 1778, 1778-1779 (1999).
22 JODY HEYMANN, THE WIDENING GAP: WHY AMERICA’S WORKING FAMILIES ARE IN JEOPARDY AND WHAT CAN BE DONE ABOUT IT 2 (2000).
23 Id. at 24.
24 JOHN P. ROBINSON & GEOFFREY GODBEY, TIME FOR LIFE: THE SURPRISING WAYS AMERICANS USE THEIR TIME 104 (2d ed., 1999).
25 See Peter Glick, Trait-Based and Sex-Based Discrimination in Occupational Prestige, Occupational Salary, and Hiring, 25 SEX ROLES 351, 358-61 (1991); Alice H. Eagly & Valerie J. Steffen, Gender Stereotypes Stem from the Distribution of Women and Men in Social Roles, 46 J. OF PERSONALITY AND SOC. PSYCHOL. 735 (1984).
26 Jane Lawler Dye, Fertility of American Women: June 2004, Population Characteristics, P20-555 (U.S. Census Bureau, Dec. 2005), at 2, available at http://www.census.gov/prod/2005pubs/p20-555.pdf (stating that, in 2002, 19.3% of women aged 40 to 44 had never had children).
27 See also Kathleen Fuegen, Monica Biernat, Elizabeth Haines & Kay Deaux, Mothers and Fathers in the Workplace: How Gender and Parental Status Influence Judgments of Job-Related Competence, 60 J. SOC. ISSUES 737 (2004)(father held to more lenient employment standards).
28 See generally NICHOLAS W. TOWNSEND, THE PACKAGE DEAL: MARRIAGE, WORK, AND FATHERHOOD IN MEN'S LIVES (2002)
29 See, e.g., Tammy D. Allen & Joyce E. Russell, Parental Leave of Absence: Some Not So Family-Friendly Implications, 29 J. OF APPLIED SOC. PSYCHOL. 166 (1999), as cited in Christine E. Dickson, The Impact of Family Supportive Policies and Practices on Perceived Family Discrimination 7 (2003) (unpublished dissertation, California School of Organizational Studies, Alliant International University) (on file with the Center for WorkLife Law).
30 See, e.g., Adam B. Butler & Amie Skattebo, What Is Acceptable for Women May Not Be For Men: The Effect of Family Conflicts with Work on Job Performance Ratings (2003) (unpublished manuscript, Univ. of Northern Iowa, Cedar Falls), as cited in Christine E. Dickson, The Impact of Family Supportive Policies and Practices on Perceived Family Discrimination (2003) (unpublished dissertation, California School of Organizational Studies, Alliant International University) (on file with the Center for WorkLife Law), at 7.
31 Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001).
32 Id. at 630.
33 Plaetzer v. Borton Automotive, Inc., 2004 WL 2066770 (D. Minn. 2004).
34 Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004).
35 See, e.g., JOAN C. WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 31-32, 180-181 (2000).
36 See, e.g., Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1444 (1991).
37 See generally Ivy Kennelly, “That Single-Mother Element”: How White Employers Typify Black Women, 13 GENDER AND SOCIETY 168 (1999).
38 Cf., Linda McClain, “Irresponsible” Reproduction, 47 HASTINGS L.J. 339 (1996).
39 Note that the maternal wall bias that affects women of color is a form of racial bias. In this section, however, I refer to lawyers’ common understandings of racial bias (which tend to place men of color’s experience at the center of their analysis).
40 480 S.E.2d 502 (Va. 1997).
41 217 F.3d 46 (1st Cir. 2000).
42 173 F.3d 1039 (7th Cir. 1999).
43 No. 98 Civ. 2205, 1998 WL 912101 (S.D.N.Y. 1998).
44 Id. at *4-7.
45 See Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. OF PERSONALITY AND SOC. PSYCHOL. 797 (1995); Mahzarin Banaji, Ordinary Prejudice, PSYCHOL. SCI. AGENDA, Jan.-Feb. 2001, at 8-11.
46 See Peter Glick et al., Beyond Prejudice as Simply Antipathy: Hostile and Benevolent Sexism Across Cultures, 79 J. PERSONALITY AND SOC. PSYCHOL. 763, 763 (2000) (quoting G.W. ALLPORT, THE NATURE OF PREJUDICE (1954)).
48 See Diane Kobrynowicz & Monica Biernat, Decoding Subjective Evaluations: How Stereotypes Provide Shifting Standards, 33 J. EXPERIMENTAL SOC. PSYCHOL. 579, 587 (1997).
49 Back, 365 F.3d at 115 (2d Cir. 2004).
50 Hallberg v. Aristech Chemical Corp. (W.D. Pa. 1999), discussed in Ann Belser, Mommy Track Wins: $ 3 Million Awarded to Mom Denied Promotion, PITTSBURGH POST-GAZETTE, April 30, 1999, at B1.
51 383 F.3d 580, 583 (7th Cir. 2004).
52 319 F.Supp.2d 841 (N.D. Ill. 2004).
53 See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren, 429 U.S. 190 (1976).
54 Mary Ann Case, “The Very Stereotype the Law Condemns”: Constitutional Discrimination Law as a Quest for Perfect Proxies, 85 CORNELL L. REV. 1447 (2000).
55 See generally Don Operario & Susan T. Fiske, Stereotypes: Content, Structures, Processes, and Context, in SOCIAL COGNITION 120-135 (Marilynn B. Brewer and Miles Hewstone, eds., 2004).
56 411 U.S. 677 (1973).
57 156 F.3d 396 (1998).
58 Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J. OF SOCIOL. 1297, 1316 (2007). See also Kathleen Fuegen, Monica Biernat, Elizabeth Haines & Kay Deaux, Mothers and Fathers in the Workplace: How Gender and Parental Status Influence Judgments of Job-Related Competence, 60 J. SOC. ISSUES 737 (2004)(mothers are held to stricter employment standards).
59 See Susan T. Fiske et al., A Model of (Often Mixed) Stereotype Content: Competence and Warmth Respectively Follow from Perceived Status and Competition, 82 J. PERSONALITY & SOC. PSYCHOL. 878 (2002). See also Thomas Eckes, Paternalistic and Envious Gender Stereotypes: Testing Predictions from the Stereotype Content Model, 47 SEX ROLES 99, 110 (2002); Peter Glick & Susan T. Fiske, An Ambivalent Alliance: Hostile and Benevolent Sexism as Complementary Justifications for Gender Inequality, 56 AM. PSYCHOL. 109, 113 (2001).
60 Amy Cuddy, Susan Fiske & Peter Glick, When Professionals Become Mothers, Warmth Doesn’t Cut the Ice, 60 J. SOC. ISSUES 701 (2004).
61 See id.
62 Deborah L. Rhode, Myths of Meritocracy, 65 FORDHAM L. REV. 585, 588 (1996).
63 Kay Deaux et al., Level of Categorization and Content of Gender Stereotypes, 3 SOC. COGNITION 145 (1985); Cecilia Ridgeway & Shelley Correll, Motherhood as a Status Characteristic, 60 J. SOC. ISSUES 683 (2004); Personal communication with Cecilia Ridgeway, Professor of Sociology, Stanford University, in Washington, D.C. (May 10, 2002).
64 See Claire Etaugh & D. Folger, Perceptions of Parents Whose Work and Parenting Behaviors Deviate from Role Expectations, 39 SEX ROLES 215 (1998)(mothers who reduce their hours viewed as less competent); Claire Etaugh & B. Petroski, Perceptions of Women: Effects of Employment Status and Marital Status, 12 SEX ROLES 339 (1985)(mothers who reduce their hours viewed as less committed). See generally CYNTHIA FUCHS EPSTEIN, CARROLL SERON, BONNIE OGLENSKY & ROBERT SAUTÉ, THE PART-TIME PARADOX: TIME NORMS, PROFESSIONAL LIFE, FAMILY AND GENDER (1999).
65 See generally Jennifer Glass, Blessing or Curse? Work-Family Policies and Mother’s Wage Growth Over Time, 31 WORK AND OCCUPATIONS 367 (Aug 2004).
66 See, e.g., id.; Joan C. Williams & Cynthia Thomas Calvert, Better on Balance? The Corporate Counsel Work/Life Report (The Project for Attorney Retention, 2003), available at http://www.uchastings.edu/site_files/WLL/betteronbalance.pdf; Joan C. Williams & Cynthia Thomas Calvert, Balanced Hours: Effective Part-Time Policies for Washington Law Firms (The Project for Attorney Retention, 2d ed. 2001), available at http://www.uchastings.edu/site_files/WLL/BalancedHours2nd.pdf. For further information about The Project for Attorney Retention, see http://www.pardc.org/.
67 Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
68 Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003).
69 Id. at 736.
70 See Linda Greenhouse, Heartfelt Words from the Rehnquist Court, N.Y. TIMES, July 6, 2003 (Chief Justice Rehnquist’s “daughter, Janet, is a single mother who until recently held a high-pressure job and sometimes had child-care problems. Several times this term, the seventy-eight-year-old Chief Justice of the United States left work early to pick up his granddaughters from school”).
71 Nevada Dep't of Human Resources, 538 U.S. at 738.
72 126 S.Ct. 2405 (2006).
73 Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405, 2415 (2006).
74 365 F.3d 107 (2d Cir. 2004).
75 383 F.3d 580 (7th Cir. 2004).
76 Paz v. Wauconda Healthcare and Rehab. Ctr., 464 F.3d 659 (7th Cir. 2006)(supervisor allegedly suggested employee have an abortion); Doe v Dep't of Fire and Emergency, Civil Action No. 02-2338 (D.D.C. 2005)(negative pregnancy test required for female firefighters to be hired and no pregnancies permitted in first year of employment; three women had abortions to keep their jobs); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998) (Supervisor advised clerk to get an abortion and offered to pay for it and to drive her to the clinic; when she refused, supervisor made her do more lifting that she had when not pregnant).
77 Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 855 (8th Cir. 1998).
78 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998).
79 383 F.3d 580 (7th Cir. 2004).
80 Hallberg v. Aristech Chemical Corp. (W.D. Pa. 1999), discussed in Ann Belser, Mommy Track Wins: $ 3 Million Awarded to Mom Denied Promotion, PITTSBURGH POST-GAZETTE, April 30, 1999, at B1.
81 Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003).
82 Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, 2005 US App. LEXIS 1710 (4th Cir. 2005).
83 See, e.g., Batka v. Prime Charter Ltd., 301 F.Supp.2d 308 (S.D.N.Y. 2004); Zimmerman v. Direct Federal Credit Union, 262 F.3d 10 (1st Cir. 2001).
84 Mary C. Still, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities 6 (Center for WorkLife Law, University of California, Hastings College of the Law ed. 2006), available at http://www.uchastings.edu/site files/WLL/FRDreport.pdf.
85 JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, WORKLIFE LAW’S GUIDE TO FAMILY RESPONSIBILITIES DISCRIMINATION (2006).
86 Email from Judith Droz Keyes, Partner, Davis Wright Tremaine, LLP, April 9, 2007 (on file with the Center for WorkLife Law).
87 Indeed, one newsletter written by a defense-side law firm counseled employers not only to offer proportional wages for part-time work, but to allow telecommuting and flextime, if economically feasible, as well as leave banks. Krukowski & Costello, S.C., A Glass Ceiling for Parents? WASH., D.C. EMP. L. LETTER, available at http://www.hrhero.com/pregnancy/parents.shtml (last visited April 1, 2007).
88 See, e.g., Back, 365 F.3d 107; Troy v. Bay State Computer Group, Inc., 141 F.3d 378 (1st Cir. 1998); Sheehan v. Donlen Crop., 173 F.3d 1039 (7th Cir. 1999); Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), aff'd, 383 F.3d 580 (7th Cir. 2004); Stern v. Cintas Corp., 319 F.Supp.2d 841 (N.D. Ill. 2004); Plaetzer v. Borton Automotive, Inc., 2004 WL 2066770 (D. Minn. 2004).
89 See, e.g., Walsh v. Irvin Stern's Costumes, 2006 U.S. Dist. LEXIS 2120 (E.D. Pa. 2006); Flores v Buy Buy Baby, Inc., 118 F. Supp. 2d 425 (S.D.N.Y. 2000).
90 See, e.g., Vosdingh v Qwest Dex, 2005 U.S. Dist. LEXIS 10721 (D. Minn. 2005).
91 See, e.g., Laxton v. Gap, Inc., 333 F.3d 572 (5th Cir. 2003); Alexander .v NameProtect, Inc., 2006 WL 1279324 (W.D. Wis. 2006).
92 Note that the strong trend in maternal wall cases is away from a “sex-plus” theory, which rests on the assumption that a plaintiff is disadvantaged by her sex “plus” another characteristic (being a parent), Phillips v. Martin-Marietta Corporation, 400 U.S. 542 (1971) (per curiam), towards litigating these cases as straight-up gender discrimination cases. In fact, some cases mix evidence of bias against mothers with evidence of bias against women in general; or as some would say, some cases involve two or more distinct kinds of gender bias. See, e.g., Halbrook v. Reichold Chemicals, Inc., 735 F. Supp. 121 (S.D.N.Y. 1990), later proceeding, 766 F. Supp. 1290 (S.D.N.Y. 1991).
93 Back, 365 F.3d 107.
94 See, e.g., Gratton v. JetBlue, 2005 U.S. Dist. LEXIS 10188 (S.D.N.Y. 2005) (law does not require special treatment of pregnant employees).
95 Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405, 2415 (2006).
96 Washington v. Illinois Department of Revenue, 420 F.3d 658 (7th Cir. 2005).
97 See, e.g., Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004).
98 See, e.g., Trezza v. The Hartford, Inc., No. 98 Civ. 2205, 1998 WL 912101 (S.D.N.Y. 1998).
99 Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003).
100 Id. (employer based actions in part on plaintiff’s plans to become pregnant again in the future); Kuest v. Regent Assisted Living, Inc., 43 P.3d 23 (Wash.App. 2002) (under analogous Washington law, violation found where woman was terminated because she might become pregnant one day and replaced with a 60 year old woman).
101 Harper v. Thiokol Chem. Corp., 619 F.2d 489 (5th Cir. 1980).
102 42 U.S.C.§§ 12101, et seq. (2005).
103 McGrenaghan v. St. Denis School, 979 F. Supp. 323 (E.D. Pa. 1997).
104 Abdel-Khalek v. Ernst & Young, LLP, 1999 WL 190790 (S.D.N.Y. Mar. 5, 199, as amended April 7, 1999).
105 Miller v. CBC, 908 F.Supp. 1054 (D.N.H. 1995).
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