Gender Stereotyping: Disparate Treatment of Workers with Caregiver Responsibilities

The Sunday News features an article In job searches, women take hit that discusses the gap in legal protections under federal and Pennsylvania law for women when it comes to prohibitions against discrimination based on marital status or family status. The article contains the following legal summary that screams out for context and clarification:

When you apply for a job in Pennsylvania, an employer is prohibited from asking you about, among other things, your age, race, religion or ancestry.

But he can ask you if you have children. He can ask you when and if you plan to have kids. He can ask if you’re married, single, separated or divorced.

And he can refuse to hire you on the basis of your marital or familial status.

In Pennsylvania, there is nothing illegal about treating employees and prospective employees differently, based on marital or family status. You can be refused a job or refused a promotion simply because, for instance, you’re a single parent.

While it is technically correct that it is not unlawful to discriminate based on marital or family status, there are legal prohibitions against employment practices that have a disparate impact against individuals based on their gender or disability.  Gender Stereotyping is a recognized and growing basis for discrimination claims.  An employer’s gender stereotyping can be demonstrated by interview questions, workplace comments and attitudes about a woman’s role in family matters.  For example, in Back v. Hastings on Hudson Union Free Sch. Dist., the court ruled that comments made about a woman’s inability to combine work and motherhood — in particular, 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," constituted direct evidence of sex discrimination under a stereotyping theory. Other cases follow similar reasoning.

The EEOC is also seeking to fill this void with its recently published Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities in which the agency acknowledges that there are no express protections from discrimination based solely on parental or caregiver status. However, unlawful disparate treatment may arise when a caregiver is subject to discrimination based on sex and/or race or because of his or her association with an individual with a disability. The Guidance highlights some common circumstances that the EEOC believes might constitute unlawful disparate treatment:

• Treating male caregivers more favorably than female caregivers: Denying women with young children an employment opportunity that is available to men with young children.
•  Sex-based stereotyping of working women:
  • Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.
  • Reducing a female employee’s workload after she assumes full-time care of her niece and nephew based on the assumption that, as a female caregiver, she will not want to work overtime.
• Subjective decisionmaking: Lowering subjective evaluations of a female employee’s work performance after she becomes the primary caregiver of her grandchildren, despite the absence of an actual decline in work performance.
• Assumptions about pregnant workers: Limiting a pregnant worker’s job duties based on pregnancy-related stereotypes.
• Discrimination against working fathers: Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
• Stereotyping based on association with an individual with a disability: Refusing to hire a worker who is a single parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.

The EEOC is serious about its enforcement actions.  On September 27, 2007,  the EEOC announced that it has filed suit against Bloomberg L.P. for demoting a class of women and reducing their pay after they announce pregnancies and after they took pregnancy leave.  An EEOC trial attorney is quoted in the announcement  concerning sexual stereotyping:  "This case exemplifies an increasing trend where employers engage in stereotyping of female caregivers and act to limit their employment opportunities.  Pregnant women and mothers who work hard and perform well should be valued for their work, not penalized for their gender."

Employers should ask only job related interview questions, treating male and female applicants identically. Avoid stereotyping the roles of men and women in your interview, evaluation and promotion procedures. Don’t get caught off guard with a claim of family responsibility discrimination.