Family Responsibilities Discrimination Case May Proceed Under Mixed “Sexual Stereotyping – Sex Plus” Theory

By Ted Olsen

Federal civil rights laws generally do not protect applicants or employees from discrimination based on family responsibilities.[1] However, as we have reported in the past, the EEOC has formally opined that current laws are sufficient in many cases to provide legal redress when an employer makes decisions based on a person's family responsibilities.

There are situations in which decisions based on a person's family responsibilities can result in violations of the discrimination laws. For instance, if an employer held a woman's family care responsibilities against her when making an employment decision, but did not do so for a man with family care responsibilities, it would be sex discrimination. Also, if an employer uniformly refuses to hire candidates who are primarily responsible for the care of school age children, this rule may create disparate impact liability for the employer, because women in our culture typically have more family care responsibilities than men.

But is it unlawful sex discrimination to give unfavorable treatment to women and men with children, while favoring persons of both genders without children? Likewise, is it illegal to give unfavorable treatment to a woman with young children, while favoring women with older children or no children, and men with and without children? These questions lay bare the fact that distinctions based on family care responsibilities are not inherently distinctions based on gender.

Nevertheless, the Third Circuit Court of Appeals recently ruled that if an employer takes adverse action against a woman because she has young children, it would be sex discrimination prohibited by Title VII, even if the employer gives favored treatment to women with older children or no children. Chadwick v. Wellpoint, Inc., Case No. 08-1685, --- F.3d --- (3d Cir. Mar. 26, 2009). Such a result may be politically correct, but is not supported by the law.

Chadwick involved an employer's decision to select one of two finalists for a promotion (Ms. Oulette) over the other (Ms. Chadwick). Viewing the evidence in her favor, Ms. Chadwick had more years of service, higher performance ratings, and longer experience performing functions to be included in the position for which the candidates were being considered. Ms. Chadwick also was known by the managers making the promotion decision to be taking a college course, and to have four children, an 11-year old son and six-year old triplets. The record was unclear whether the decision-makers were aware that Ms. Oulette had two children, ages nine and 14, when the decision was made.

The decision-makers claimed that Ms. Chadwick was not selected because she did not interview as well as Ms. Oulette.[2] This was one reason why the District Court, in Ms. Chadwick's Title VII lawsuit, granted the employer summary judgment. But the Court of Appeals reversed, ruling there was sufficient evidence to permit Ms. Chadwick to take her sex discrimination claim to a jury trial.

First, in a somewhat illogical move, the appellate court found that the plaintiff's job performance evaluations and long-term service were sufficient to cast doubt on the employer's proffered explanation for not promoting her. The Court did not explain how her past service and performance would nullify an opinion that the plaintiff did not interview as well as her competitor.

Second, the Court of Appeals concluded that a jury could reasonably decide - based on comments made by the decision-makers - that Ms. Chadwick was denied the promotion because they assumed that as a woman with four young children, she would not (or could not) give her all to her job. For example:

One decision-maker sent Ms. Chadwick an e-mail message exclaiming, "Oh my - I did not know you had triplets. Bless you!" The Court found that a jury could reasonably interpret this ambiguous comment to be an expression of pity to Ms. Chadwick, because such young children made her life difficult.
That same decision-maker later told Ms. Chadwick that she had not been given the promotion because, if the three decision-makers had had all her responsibilities, they would have felt "overwhelmed."
When informing the plaintiff that she had not been selected, this decision-maker explained, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." (The decision-maker claimed that she said this in an effort to soften the blow.)

These comments certainly suggest that the promotion decision was due to employer concerns about whether Ms. Chadwick's children (and college studies) might interfere with her work performance in this new job position.[3] But is discrimination against an individual because of his or her children or other activities prohibited by Title VII? The Court of Appeals said, "yes," but only if the individual being disadvantaged is a woman. Because there is a societal stereotype that caring for family members is "women's work," the Court said, an employer's assumption that a woman will perform her job less effectively due to her presumed family obligations is a form of sex-stereotyping, making adverse job actions based on that assumption unlawfully discriminatory. As stated by the Court:

. . . . [U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. . . . [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.[4]

Putting aside all the legal analysis, employers should take a couple of lessons away from Chadwick:
Don't try to soften the blow when giving bad news. If an applicant or employee didn't interview as well as a competitor, say so.

While these court decisions may not be logical, and may not stand up over time, assume that having children is a protected status, at least for women. Don't base an employment decision on a person's (or a woman's) having children. Best of all, give no consideration to whether a person - female or male - has children.

Second, the Court observed that it was unclear from the record whether the Company even knew of Ms. Oulette's children when the promotion decision was made. If the decision-makers were unaware of Ms. Oulette's children, then the employer's argument would not be persuasive.

Third, the Court mused that the sexual stereotype in question might be more strongly held by the decision-makers, as to a mother of four young children than a mother of two "older" children. If Ms. Oulette's two children (ages 9 and 14) were "older," then one of Ms. Chadwick's children (age 11) was also "older," and the Court's point assumes - without support - that the societal stereotyping dissipates as an employee's child progresses from first grade to fourth grade.

The flaw in this reasoning, of course, is that the protected condition - having young children - is not gender-limited. Presumably the Court of Appeals' rejoinder to this would be that societal stereotypes do not treat child-care as "men's work," so that men with children do not bear the same burden (in society and in the workplace) as do women. However, there was no evidence in this case that the decision-maker specifically had this same stereotypical view.

[1] The Family and Medical Leave Act is an exception, as it bans discrimination in some circumstances against an individual when his or her family responsibilities involve a newborn child, newly adopted child, or newly placed foster child, or the care of immediate family members with a serious health condition.

[2] See, "Employment Decision Based on Person's Performance in Interview was Not Excessively Subjective, Tenth Circuit Decides," supra.

[3] The Court casually brushed aside the fact that the selected candidate, Ms. Oulette, had two children, ages nine and 14. First, the Court made the dubious observation that Title VII is meant to protect individual employees, not classes as a whole, and then jumped to the conclusion that discrimination against Ms. Chadwick could not be remedied by non-discrimination against Ms. Oulette. That, of course, was not the employer's point. The favored treatment of one woman with children (Ms. Oulette) over another woman with children (Ms. Chadwick), (a) demonstrated that this was not a case of gender discrimination, and (b) disproved Ms. Chadwick's theory that the decision was based on her having children.

[4] The Third Circuit treated this case as a so-called "sex-plus" case, a case in which an employer discriminates against employees on the basis of sex plus another characteristic. In such cases, the employer does not discriminate against the class of men or women as a whole, but rather, treats differently a subclass of one gender. (In Chadwick, the subclass asserted by the plaintiff was women with young children.) Under this theory, discrimination against a subclass of women is inherently discrimination against women (albeit not all women).

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C. June 5, 2009

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Family Responsibilities Discrimination Case May Proceed Under Mixed “Sexual Stereotyping – Sex Plus” Theory By Ted Olsen Federal civil rights laws generally do not protect applicants or employees from discrimination based on family responsibilities.[1] However, as we have reported in the past, the EEOC has formally opined that current laws are sufficient in many cases to provide legal redress when an employer makes decisions based on a person's family responsibilities. There are situations in which decisions based on a person's family responsibilities can result in violations of the discrimination laws. For instance, if an employer held a woman's family care responsibilities against her when making an employment decision, but did not do so for a man with family care responsibilities, it would be sex discrimination. Also, if an employer uniformly refuses to hire candidates who are primarily responsible for the care of school age children, this rule may create disparate impact liability for the employer, because women in our culture typically have more family care responsibilities than men. But is it unlawful sex discrimination to give unfavorable treatment to women and men with children, while favoring persons of both genders without children? Likewise, is it illegal to give unfavorable treatment to a woman with young children, while favoring women with older children or no children, and men with and without children? These questions lay bare the fact that distinctions based on family care responsibilities are not inherently distinctions based on gender. Nevertheless, the Third Circuit Court of Appeals recently ruled that if an employer takes adverse action against a woman because she has young children, it would be sex discrimination prohibited by Title VII, even if the employer gives favored treatment to women with older children or no children. Chadwick v. Wellpoint, Inc., Case No. 08-1685, --- F.3d --- (3d Cir. Mar. 26, 2009). Such a result may be politically correct, but is not supported by the law. Chadwick involved an employer's decision to select one of two finalists for a promotion (Ms. Oulette) over the other (Ms. Chadwick). Viewing the evidence in her favor, Ms. Chadwick had more years of service, higher performance ratings, and longer experience performing functions to be included in the position for which the candidates were being considered. Ms. Chadwick also was known by the managers making the promotion decision to be taking a college course, and to have four children, an 11-year old son and six-year old triplets. The record was unclear whether the decision-makers were aware that Ms. Oulette had two children, ages nine and 14, when the decision was made. The decision-makers claimed that Ms. Chadwick was not selected because she did not interview as well as Ms. Oulette.[2] This was one reason why the District Court, in Ms. Chadwick's Title VII lawsuit, granted the employer summary judgment. But the Court of Appeals reversed, ruling there was sufficient evidence to permit Ms. Chadwick to take her sex discrimination claim to a jury trial. First, in a somewhat illogical move, the appellate court found that the plaintiff's job performance evaluations and long-term service were sufficient to cast doubt on the employer's proffered explanation for not promoting her. The Court did not explain how her past service and performance would nullify an opinion that the plaintiff did not interview as well as her competitor. Second, the Court of Appeals concluded that a jury could reasonably decide - based on comments made by the decision-makers - that Ms. Chadwick was denied the promotion because they assumed that as a woman with four young children, she would not (or could not) give her all to her job. For example: One decision-maker sent Ms. Chadwick an e-mail message exclaiming, "Oh my - I did not know you had triplets. Bless you!" The Court found that a jury could reasonably interpret this ambiguous comment to be an expression of pity to Ms. Chadwick, because such young children made her life difficult. That same decision-maker later told Ms. Chadwick that she had not been given the promotion because, if the three decision-makers had had all her responsibilities, they would have felt "overwhelmed." When informing the plaintiff that she had not been selected, this decision-maker explained, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." (The decision-maker claimed that she said this in an effort to soften the blow.) These comments certainly suggest that the promotion decision was due to employer concerns about whether Ms. Chadwick's children (and college studies) might interfere with her work performance in this new job position.[3] But is discrimination against an individual because of his or her children or other activities prohibited by Title VII? The Court of Appeals said, "yes," but only if the individual being disadvantaged is a woman. Because there is a societal stereotype that caring for family members is "women's work," the Court said, an employer's assumption that a woman will perform her job less effectively due to her presumed family obligations is a form of sex-stereotyping, making adverse job actions based on that assumption unlawfully discriminatory. As stated by the Court: . . . . [U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. . . . [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.[4] Putting aside all the legal analysis, employers should take a couple of lessons away from Chadwick: Don't try to soften the blow when giving bad news. If an applicant or employee didn't interview as well as a competitor, say so. While these court decisions may not be logical, and may not stand up over time, assume that having children is a protected status, at least for women. Don't base an employment decision on a person's (or a woman's) having children. Best of all, give no consideration to whether a person - female or male - has children. Second, the Court observed that it was unclear from the record whether the Company even knew of Ms. Oulette's children when the promotion decision was made. If the decision-makers were unaware of Ms. Oulette's children, then the employer's argument would not be persuasive. Third, the Court mused that the sexual stereotype in question might be more strongly held by the decision-makers, as to a mother of four young children than a mother of two "older" children. If Ms. Oulette's two children (ages 9 and 14) were "older," then one of Ms. Chadwick's children (age 11) was also "older," and the Court's point assumes - without support - that the societal stereotyping dissipates as an employee's child progresses from first grade to fourth grade. The flaw in this reasoning, of course, is that the protected condition - having young children - is not gender-limited. Presumably the Court of Appeals' rejoinder to this would be that societal stereotypes do not treat child-care as "men's work," so that men with children do not bear the same burden (in society and in the workplace) as do women. However, there was no evidence in this case that the decision-maker specifically had this same stereotypical view. [1] The Family and Medical Leave Act is an exception, as it bans discrimination in some circumstances against an individual when his or her family responsibilities involve a newborn child, newly adopted child, or newly placed foster child, or the care of immediate family members with a serious health condition. [2] See, "Employment Decision Based on Person's Performance in Interview was Not Excessively Subjective, Tenth Circuit Decides," supra. [3] The Court casually brushed aside the fact that the selected candidate, Ms. Oulette, had two children, ages nine and 14. First, the Court made the dubious observation that Title VII is meant to protect individual employees, not classes as a whole, and then jumped to the conclusion that discrimination against Ms. Chadwick could not be remedied by non-discrimination against Ms. Oulette. That, of course, was not the employer's point. The favored treatment of one woman with children (Ms. Oulette) over another woman with children (Ms. Chadwick), (a) demonstrated that this was not a case of gender discrimination, and (b) disproved Ms. Chadwick's theory that the decision was based on her having children. [4] The Third Circuit treated this case as a so-called "sex-plus" case, a case in which an employer discriminates against employees on the basis of sex plus another characteristic. In such cases, the employer does not discriminate against the class of men or women as a whole, but rather, treats differently a subclass of one gender. (In Chadwick, the subclass asserted by the plaintiff was women with young children.) Under this theory, discrimination against a subclass of women is inherently discrimination against women (albeit not all women). Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2009 Sherman & Howard L.L.C. June 5, 2009 Copyright 2000-2010 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use