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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 a

lso 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.

The Force is with You!

Are you interested in partaking in a statistical experiment?

If the approximately 20 million firms that exist in American were each assigned identification numbers and you were selected to randomly select a single phone number to call from those firms, odds are that when you were patched through to an owner, the voice on the other end would be female. Surprised?

According to the Center for Women’s Business Research, nearly 10.4 million firms are owned by women and they generate $1.9 trillion in sales! Of those firms, 7.7 million (74%) are controlled by women (who own 50% or more). Majority women-owned businesses grow at around two times the rate of all firms. Women have clearly arrived!

Statistically, women tend to be risk takers, employe more relationship focused management styles and belong to more formal business organizations or networks. They are also more likely to rely on external professional services such as accountants, financial advisors and attorneys (YEAH!)

Armed with this information, you may say to yourself, “Self, I’m a capable woman, why don’t I start my own business?” Good question. Then your next thought might be, “What do I need to consider in starting a business?” I’m glad you asked.

Although, a comprehensive list of considerations would be quite extensive, we’ll discuss some of the more important issues. First, is your idea or concept new and proprietary and does it merit patent or copyright consideration? Regardless of the answer, have you determined the level of personal risk you and/or your family are willing to take to be in business? You should be aware that if you choose to be a sole proprietor and not form a corporation, limited liability company or limited partnership, you expose yourself to potential personal liability that may be protected in properly structured, managed and papered alternative entities.

There are simple items that need to be addressed such as understanding the land use or zoning for the location you may selec

t for your business, other than your home. If you locate a business outside your home you may need a certificate of occupancy from the city or town. Entering into a lease agreement for your office or retail space? You may want to understand what’s contained in those twenty-five pages. Are you familiar with triple net leases, CAM charges, guarantor obligations?

You would want to speak with your insurance agent to understand what insurance coverage’s might be available to protect you and your business. A visit with a CPA will help you be aware of tax implications related to the entity structure you choose for your business. Subchapter S corporations, limited liability companies and partnerships can all be designed to allow income and expenses to “flow through” to the owner(s) own personal tax statement. You need to understand how you account for franchise taxes, guaranteed payments and distributions?

If you are going to have employees there are a number of issues in which your CPA and attorney can advise you including employment and contractor law and agreements as well as payroll, franchise, withholding taxes and the like.

What about purchasing a franchise or an existing business? Again there are a multitude of items to be examined and details to be comprehended. The purchase of a business should involve a seasoned attorney who can assist you in contract preparation and the orderly transition to ownership. There are far too many considerations to leave this to chance. One of the saddest situations that we deal with are individuals and entrepreneurs who enter into agreements without the counsel of an attorney only to find out that they did not get what they thought they’d bargained for or they got trapped by a contractual nuance that they thought they understood but didn’t.

Another issue you may want to address, whether starting a business or as a part of an existing business is what happens to your business in the event of death, divorce, or disability. If you have a business partner do you want to have their spouse as a partner if your partner dies or is divorced? Many times the answer is no. These issues can often be dealt with at the time your entity is formed in the by-laws or regulations that govern the operations of the entity.  You can also create buy-sell agreements that provide for an orderly transition in the event of death and, if backed by life insurance, can provide a funding mechanism for the purchase of a partner or shareholders interest.

Forming, managing, documenting and operating your business can seem like a daunting task, but with proper advise and attention to detail, you should do fine.

Remember women of corporate America, you’re already at the wheel of the business ship at least half the time. You’re risk takers with compassion. You are succeeding in record numbers. You are the force!