And the Working Mother

You were engaged in your career for several years and had managed to successfully navigate through that illusory balance between work and family. You loved your job, your boss loved your work and you just got the opportunity to lead an eighteen month long project that makes you the envy of all your coworkers. Next step, Manager!

But the very next day you discover that your child’s ill. Not the take-a-day off kind of illness, but seriously ill. You’re forced to take the family leave time needed to nurse your child back to health. In two months she’s recovered, your thrilled, and its time to go back to work.

When you arrive back at the office the boss says that the project’s “too far along” to add you back into the mix at all, none-the-less in your former lead position. He explains that although the situation with your child was unavoidable, her illness just made it “too risky” to reinsert you into a project of that magnitude. You’re disappointed but you understand.

Six months later you’re thrilled to discover that you’re pregnant. Two years later you’re still waiting for that next big assignment and that promotion to Manager is just a distant memory. When you complain to your boss, he explains that “when your kids get a little older and you’re done with having more babies,” he has great plans for your career.  “Just be patient” he advises, “We’ll get past this Mom thing.”

Do you continue to understand, or do you call your attorney to ask about gender discrimination?

Meet Elana Back. She was a school psychologist at a New York elementary school, who may be able to help you answer this question. Ms. Back took a three-month parental leave and claimed that upon her return her female supervisors made discriminatory comments regarding her motherhood, suggesting such things as waiting to “get pregnant until she retires,” or until “her son was in kindergarten.” They also suggested that she may not have the ability to work because she had “little ones” at home and it may not possible to be a good mother and perform her job.

She was denied tenure and terminated. The school alleged that she was terminated because she “lacked organizational and interpersonal skills.” Her position was that she was termination because her employer felt that she could not succeed in her job while being a mother of young children. Back v. Hastings-On-Hudson Union Free School District (2004).

In a 2004 ruling, the U.S. Court of Appeals for the Second Circuit said that the use of motherhood stereotypes of female employees is gender discrimination under the Equal Protection Clause of the 14th Amendment, which prohibits discrimination on the basis of sex in public employment. The appeals court found that Back’s factual allegations regarding the comments made about “a woman’s inability to combine work and motherhood” constituted direct evidence of gender discrimination.

A rationale for the decision may have been the U.S. Supreme Court’s ruling in Nevada Department of Human Resources v. Hibbs (2003). In Hibbs, the court ruled that “notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible” constitute gender discrimination. The basis of their finding was that it was easy to determine that stereotypical statements that a woman cannot be a “good mother and have a job that requires long hours,” or that a mother who received tenure “would not show the same level of commitment [she] had shown because [she] had little ones at home” were discriminatory.

Generally, discrimination cases require that the Plaintiff show that others not in their protected class are treated differently. Back failed to offer such evidence as 85% of the teachers in her school were female. The court agreed that Back’s case would have been stronger had she offered comparative evidence about men but the court held that such evidence was not required.

This decision was rendered based on Ms. Back being a public employee (Equal Protection Clause, 14^th Amendment). Our hypothetical could be in the public or private sector. In either event though, the legal rationale should be consistent and any presumption by your employer that combining work and motherhood are incompatible and make you a less capable or devoted employee, may constitute gender discrimination.