Working Mom Wins Discrimination Battle
Some companies do not treat working moms equally. Some think that working moms have “too much on their plate” and don’t give moms the same opportunities at work. Take Laurie Chadwick, a mother of four young children, for example. She had a strong record of success at Wellpoint Inc., even though she had young kids. She scored a 4.40 out 5 in her latest review. But when she applied for a promotion, Wellpoint rejected her and instead promoted a less qualified woman without children. Ms. Chadwick sued for sex discrimination.
The federal trial judge threw her case out of court, but the relentless Ms. Chadwick appealed. She found a sympathetic audience with the Court of Appeals and they reversed that pesky trial judge and reinstated her case. Here is what the Court of Appeals said:
Unlawful 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.
In Ms. Chadwick’s case, the company made a few telling comments. For example, when she asked why she did not get the promotion, she was told, “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.” And during the interview, one of the interviewers said, “Oh my — I did not know you had triplets. Bless you!” This decision in favor of Ms. Chadwick is a great victory and it can be used by other working moms who suffer discrimination.
Why Is Age Discrimination So Complicated?
There is an act of congress called the Age Discrimination in Employment Act (ADEA). The purpose of that law is to outlaw age discrimination. It follows that an employer that commits age discrimination should be liable for violating the ADEA. But the United States Supreme Court, some time ago, came up with a brilliant concept called “mixed motive” analysis. This theory gave an out to employers who commit discrimination. It says that even if a company fires an employee due to advanced age, it can escape liability if the victim would have been fired anyway. To make an analogy, this would be like saying that a person can escape liability for murder so long as the victim would have died at that time anyway from another cause.
In a case called Gross v FBL Financial Services, Inc. the U.S. Supreme Court will decide if it should continue watering down the ADEA or instead follow common sense and simply outlaw age discrimination. Murder is illegal and it does not matter if the victim would have died anyway. Likewise, companies that commit age discrimination should be held liable – no matter what. What benefit could possibly come from giving an out to companies that commit age bias? Keep it simple and keep it illegal. Nothing good comes from age discrimination. If you would like to read more about this case and hear other points of view, please see The Connecticut Employment Law Blog, Scotusblog, and The Employee Rights Post.
Pregnancy and Reductions in Force: Perfect together
Yesterday I read Ellen Simon’s post called “Getting Fired Because of Pregnancy is Illegal.” She was commenting on the New York Times article, “When the Stork Carries a Pink Slip,” by Lesley Alderman. In these days of mass lay offs, pregnant woman and mothers are getting hit hard. This is obvious to me because our employment law firm in New York City gets daily calls from pregnant woman holding pink slips. In fact, when I arrived at the office this morning, a pregnant woman, Mary (not her real name) was waiting to see me.
Mary was upset because she had been let go by her employer, a large retailer in New York City. Mary’s employer had selected 30 employees for termination (Reduction in Force or RIF) and she was selected for the RIF. Mary wanted to know if it was legal for a company to fire a pregnant person. The answer, as Ellen Simon explains, is simple. It is only illegal if the company fired Mary BECAUSE she was pregnant. It is legal to fire a pregnant employee for other reasons. For example, if Mary was fired because of poor performance or because she was no longer needed, her termination would be legal even though she is pregnant.
In Mary’s case, her employer had selected 30 employees to be terminated, including her. But the company also created many new positions due to the restructuring of the company and the 30 employees were told to apply for the new positions. More than half of those terminated were hired back. But no one would hire Mary with her protruding pregnant belly, even though Mary was more qualified and experienced than most. As Mary’s boss candidly told her, “look, no one is going to hire you while you are pregnant, so just give up and enjoy your time off.” A statement like that indicates that Mary’s pregnancy was a factor in the company’s decision not to re-hire her. So Mary may have a case and therefore she should get a much larger severance package.