Despite women’s recent advances in nontraditional areas and professional occupations, certain sexual stereotypes persist. One of those stereotypes is that working mothers are unable to manage their work and family responsibilities and thus, are less committed to their job. While Title VII prohibits discrimination in the workplace on the basis of sex, it does not specifically provide protection against workplace bias relating to their role as a working mother. In a case recently decided by the Second Circuit Court of Appeals, the Court addressed whether stereotyping about the qualities of mothers is a form of gender discrimination. Back v. Hastings on the Hudson Union Free School District, 365 F. 3d 107 (2d Cir. 2004). The Court described this question as "one that strikes at the persistent fault line between work and family – precisely where sex based overgeneralization has been and remains strongest." The Second Circuit held that stereotyping about a working mother’s inability to perform because of her child or children is a form of gender discrimination even if the working mother cannot prove that men were treated differently and the alleged discriminators were women.
The Plaintiff, Elana Back, was hired as a school psychologist in 1998 by Hillside Elementary School and was placed on a three-year tenure track. Two women, who held the positions of Principal and Director of Pupil Personnel Services, were Back’s immediate supervisors. During Back’s first two years at Hillside, both of her supervisors gave her excellent evaluations and received the highest ratings in almost all categories.
Back took three months of maternity leave during her second year at Hillside. When she returned, both of her women supervisors began making comments questioning her devotion to the job given the demands of her child. One of her supervisors asked her how she was "planning on spacing her offspring" and told her "please do not get pregnant until I retire." Back was also told by her supervisors that once she obtained tenure, she would not "show the same level of commitment she had shown because she had little ones at home" and that her job was not "for a mother." According to Back, her supervisors often expressed their astonishment that she could perform her job with "little ones" at home. At the same time that these stereotypical statements were being made, Back began to receive criticism from both supervisors regarding her work performance. Back was denied tenure and the supervisors reportedly "stated they wanted another year to assess the child care situation."
Back brought suit against Hillside alleging gender discrimination in violation of the Equal Protection Clause. The District Court granted summary judgment to Hillside, the employer. The Second Circuit reversed holding that employment decisions based on gender stereotypes, such as working mothers’ inability to perform because of their responsibilities at home, constitute gender discrimination. In its opinion, the court addressed the following question "what constitutes a gender based stereotype?" The Court explained that there was no general rule to determine a "gender based stereotype" and that it was determined on a case by case basis depending on the context of the comments. Based on the facts of this case, the Second Circuit stated that "it takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure "would not show the same level of commitment she had shown because she had little ones at home."
Employers should take note that gender stereotyping about working mothers may give rise to a claim of gender discrimination under the federal and state anti-discrimination laws. If comments of this nature are made in the workplace, an employer should take steps to ensure that the individual employee making those comments desists and recognize that it may have to take disciplinary action and/or terminate the employee if the employee continues to make the discriminatory comments. Otherwise, the employer is exposing itself to liability for a claim of gender discrimination.
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