June 20, 2007

It should come as no surprise to most observers that women are ascending the corporate ladder. For example, 43 of the Fortune 500 General Counsel are women and 10 percent of the major executive positions in such corporations are held by women. But the growth has slowed in recent years and one of the major obstacles to women ascending to management positions are stereotypes regarding their ability to handle a career and their family responsibilities.

Women may have come a long way, but it seems not far enough. Whenever a lifestyle reality confronts resistance in the workplace, litigation ensues. The latest area of such employment litigation is family responsibilities discrimination — discrimination against employees because of their family caregiving responsibilities. Filed cases are on a sharp rise and, as shown below, juries that decide these cases are making a statement:

• A highly regarded female sales representative for Sealy repeatedly expressed an interest in a promotion to a management position, even if she was required to relocate. Despite her interest, she was bypassed for a promotion by her supervisor, who often directed blonde jokes (“You’re being a blonde again today”) and sexist remarks (asking her “Why [your husband] wasn’t going to take care of [you]”) to her, because “She had children and he didn’t think she’d want to relocate her family.” She sued for gender discrimination and the jury awarded her $1.1 million dollars (which was later reduced to $301,500 by the court because of Title VII’s cap on damages). Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004).
  
• Although a female account representative for National Computer Systems was considered a top performer, her manager became hostile after she returned from a maternity leave. She was told to look for another job when she asked for a schedule change so that she could get to her son’s daycare center by closing time. Her manager attached “Out - Sick Child” signs on her cubicle when she had to care for her son and referred to her son as “the sickling.” The manager threw a phone book and told her to find a pediatrician who was open after hours. When she fainted at work as a result of stress, the manager told her, “You better not be pregnant again!” She sued her employer for gender discrimination on the basis of pregnancy and the jury awarded her $625,526. In affirming the verdict, the appeals court concluded that she had presented sufficient evidence that her potential to become pregnant in the future served as the catalyst for her supervisor’s discriminatory conduct. Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003). 
  
• Ms. Sheehan had two children and was pregnant with her third child when she was fired from her job. When she told her supervisor about her third pregnancy, the supervisor said “Oh, my God, she’s pregnant again.” When she returned from a disability leave in July, her supervisor told her that she could not come back after the baby. She was fired in September and told, “Hopefully this will give you some time to spend at home with your children.” Her supervisors told co-workers that “This would be a good time for Gina to spend some time with her family.” The company had previously fired one other employee, who was also pregnant. She sued under the Pregnancy Discrimination Act and the jury awarded her a total of $116,913 ($30,000 in backpay, almost $77,000 for attorneys’ fees, and $10,000 for miscellaneous costs and interest), which was affirmed on appeal. Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999).
  
• During Ms. Lettieri’s interview for a management position with an IT company in Northern Virginia, the male senior vice president asked whether she had children, what her child care responsibilities were, and how her family felt about her weekly commute between the company’s headquarters in Virginia and her home in New York. He asked how her husband “handled the fact that [she] was away from home so much, not caring for the family,” and stated that he had “‘a very difficult time’ understanding why any man would allow his wife to live away from home during the work week.” The job was given to a male employee because his children were grown and he and his wife could make a committed move to Virginia. A year later, she was terminated. Ms. Lettieri filed suit against Equant alleging Title VII sex discrimination and retaliation claims. The Fourth Circuit Court of Appeals reversed the lower court’s grant of summary judgment to the company, and concluded that there was “powerful evidence showing a discriminatory attitude at Equant toward female managers — particularly female managers who have children at home and commute long distances. This evidence would allow a trier of fact to conclude that these discriminatory attitudes led to [Ms. Lettieri’s] ultimate termination.” The court focused on the fact that the senior vice president rejected Ms. Lettieri for the position because he believed that woman should not live away from home during the work week and that she should work close to home in New York. Lettierti v. Equant Inc., 2007 U.S. App. LEXIS 5131 (4th Cir. Mar. 5, 2007).

These are but a few examples of FRD cases, which have increased by 400 percent between 1996 and 2005, from 97 cases to 481.¹ Although the facts in the cases described above portray egregious and foolish action by supervisory employees, it is likely that more subtle discrimination will also result in liability. Not surprisingly, many cases settle before a jury ever hears the case.

FRD cases are primarily brought as Title VII or Pregnancy Discrimination Act cases, although FRD claims have also been brought under the Family and Medical Leave Act, the Americans with Disabilities Act, the Equal Pay Act and ERISA. The proliferation of FRD cases demonstrate that stereotypical attitudes about motherhood and childcare continue to permeate employment, sustaining the “mommy track” that often exists in the workplace. The stereotypes include mothers do not work as hard as other employees, mothers take more time off from work, mothers do not want to travel or new mothers should be at home. Plaintiffs’ lawyers are vigilantly pursuing these cases because the “smoking gun” evidence offends jurors and makes the cases easier to prove.

The attorneys of Wilson Elser’s National Employment Group will continue to monitor these cases closely and are advising our clients on effective legal and business strategies for complying with these new developments.

¹ Mary C. Still, Litigating The Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers With Family Responsibilities (Center For WorkLife Law, University Of California Hastings College Of The Law) (June 6, 2006).