Avoiding a Maternal Profiling Claim

The term “Maternal Profiling,” meaning employment discrimination against a woman who has, or will have, children, was recently listed by the New York Times as a noteworthy addition to the American lexicon. NY Times Article, dated December 23, 2007 (subscription required). Soon thereafter, the Atlanta Journal-Constitution featured an editorial debate on the problems of maternal profiling in the workplace. Atlanta Journal-Constitution Article, dated January 12, 2008. Most recently, FOX channel 11 in Los Angeles, California ran a special feature highlighting pregnancy discrimination litigation. FOX 11 Report, dated February 12, 2008. In addition to these traditional media outlets, popular blogs and websites such as http://www.momsrising.org/ are steadily increasing the visibility of “maternal profiling” across a broad range of readers.

As the public increasingly encounters and embraces the “maternal profiling” concept, employers should be prepared to see an increase in discrimination claims by working parents of both genders. See, e.g., Bachochin v. Shire, PLC, No. 1:06-CV-486, 2008 WL 339810, *1 (S.D. Ohio February 6, 2008) (denying motion to dismiss as to allegations of sex-discrimination against new mothers and pregnant women). Maternal profiling cases are becoming common enough that the University of California (Hastings Law Journal) and the Center for WorkLife Law recently co-hosted a symposium on “family responsibility discrimination,” one of several such recent events across the country.

Employers should note that, although “caregivers,” such as working mothers, are not a protected group under federal law, an EEOC Notice dated May 23, 2007 points out a multitude of situations in which disparate treatment of caregivers might constitute unlawful discrimination based on protected characteristics, such as gender, race and association with an individual with a disability, including:

• Treating male caregivers more favorably than female caregivers. Example: denying women with young children opportunities made available to men with young children.
• Sex-based stereotyping of working women. Examples: assigning a woman with children to less desirable or less prestigious projects based on assumptions regarding her dedication, commitment or availability, or reducing a female employee’s workload on the basis that she will not want to work overtime after assuming caregiving responsibilities. See, e.g., Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), aff’d, 383 F.3d 580 (7th Cir. 2004) (award for sales manager alleging failure to promote based on supervisor’s assumption that sales manager would not want to relocate because she had children).
• Subjective decisionmaking. Example: lowering evaluations of a female employee after she becomes a caregiver, without evidence of an actual decline in performance.
• Assumptions about pregnant workers. Example: assuming a pregnant worker cannot complete tasks or maintain attendance because of pregnancy.
• Discrimination against working fathers. Example: denying a father leave to care for an infant where such leave is usually granted to females making the same request. See, e.g., Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001) (award for father denied leave to care for newborn and wife where supervisor refused to consider father the primary caregiver unless his wife was “dead or in a coma”).
• Stereotyping based on association with an individual with a disability. Example: refusing to hire a parent of a child with a disability based on the assumption that caregiving responsibilities will make the worker unreliable.

Significantly, the EEOC Notice further explains that even benevolently motivated actions could constitute unlawful discrimination, when based on improper assumptions and stereotypes.

The EEOC Notice can thus provide a tentative roadmap regarding what is or is not lawful behavior with respect to the treatment of women who have, or may have, children. Accordingly, employers may wish to consider modifying company policies and supplementing training such that employees and management are adequately advised as to how to avoid making potentially unlawful assumptions about women who have, or may have, children, or otherwise engaging in activity that may be perceived as stereotyping or treating differently such employees.