Katz, Marshall & Banks partner Debra S. Katz published a continuing legal education white paper entitled “Recent Developments: Sex Discrimination and Family Responsibility Claims.” The paper was presented at an American Law Institute-American Bar Association continuing legal education seminar on March 5, 2009. The full text of the paper is available below.
The American Law Institute (ALI-ABA), May 5-7 2009
I. FAMILY RESPONSIBILITIES DISCRIMINATION
Family responsibilities discrimination (“FRD”) is an umbrella term for numerous kinds of workplace discrimination. FRD occurs when an employee suffers discrimination at work based on biases about how employees with family caregiving responsibilities will or should act. For example, employers may assume that new parents (typically mothers) will not be as committed to their jobs or as reliable as they were before they had children. Or an employer might believe that mothers “should” be home with their children and may give them assignments that do not require travel or late hours. The discrimination arises because the employer’s actions are based not on the individual employee’s performance or own desires, but rather on stereotypes.
Perhaps the most common form of FRD is known as “maternal wall” bias. Maternal wall bias is bias against women because they are mothers. The maternal wall theory explains why some women never experience discrimination at work until they become mothers. Maternal wall bias tends to be triggered at one of three moments when maternity becomes salient – when a woman announces her pregnancy (or begins to appear pregnant), when she returns from maternity leave, or when she switches from full-time work to a flexible work arrangement. The maternal wall bias is also implicated in the common “lack of fit” pattern of FRD. “Lack of fit” stereotypes involve an employer’s assumption that a particular – usually high-powered – job is inappropriate for a mother. The employer typically channels the mother toward more “suitable” employment roles, typically into jobs with little or no opportunity for advancement.
While there is no federal statute that expressly protects workers from adverse employment actions based on their family caregiving responsibilities, there are several federal statutes that can be used to protect these workers. The most commonly used statutes is Title VII of the Civil Rights Act of 1964 (“Title VII”). The Family and Medical Leave Act (“FMLA”) also provides key protections, and other statutes, such as the Employee Retirement Income Security Act (“ERISA”), the Americans with Disabilities Act (“ADA”), the Equal Pay Act (“EPA”), and Title IX have also been successfully used to protect family caregivers in the workplace. State and local laws and common law causes of action also play a part.
Employees seeking redress for FRD have occasionally made innovative arguments under statutes typically used for other purposes. One example is an action for tortious interference with business relations where a supervisor in a large company interfered with a caregiver’s ability to do his or her job, such as withholding resources needed by a salesperson to meet a quota. Additionally, in situations where women have been fired for taking maternity leave at companies that are too small to fall within the ambit of Title VII or state anti-discrimination laws, wrongful discharge actions have been brought.
A. Title VII
As noted above, Title VII is the statute under which most FRD cases are brought. FRD cases have embraced all the various types of actions cognizable under this statute: disparate treatment (e.g. holding open the job of a man who is recovering from a heart attack but firing a woman because she takes maternity leave); disparate impact (e.g. a company policy that prohibits new employees from taking time off for any reason disproportionately impacts pregnant women and new mothers); harassment (e.g. snide remarks, heightened scrutiny of hours and work performance aimed only at the employee taking family responsibility leave of some kind, and unreasonable work demands that occur after leave is taken); failure to promote (e.g. women without children and men with children are considered for promotion, but not women with children)’ and retaliation (e.g. mother’s loss of a flexible schedule after she complains about a discriminatory action). Another cause of action under Title VII is discrimination based on gender stereotypes. Under this theory, plaintiffs may be able to sue their employers for making personnel actions based on stereotyped assumptions about the employee (e.g. not promoting a mother because the employer assumed she would not want to relocate her children so she could take the new position). In all cases, it is essential to link bias against parents to gender so as to bring the bias within the ambit of Title VII.
Some FRD claims under Title VII are grounded in a demonstration that an employer took an adverse employment action against an employee or applicant because of the employer’s belief that a woman or man should occupy specific social roles. For example, in one case a male interviewer informed a woman applying for a counseling position that he had chosen the male candidate because he would be more “available” and “dedicated,” since he was unmarried, childless, and thus had no immediate family. Coble v. Hot Springs School Dist. No. 6, 682 F.2d 721 (8th Cir. 1982). When he called to tell the female candidate that he had selected the male candidate, he specifically told the plaintiff that while she possessed qualities that the male candidate did not, he did not think she could handle both her family responsibilities and the demanding hours of the job. Id. In finding for the plaintiff, the court held that the interviewer had “unfairly emphasized Coble's family responsibilities.” Id. at 726.
Another court found for the plaintiff where the defendant-employer failed to consider the plaintiff-mother for a position requiring travel because he believed “that working mothers cannot be both good mothers and good workers” and stated, “I don’t see how you can do either job well.” Trezza v. Hartford, Inc., No. 98 CIV. 2205, 1998 WL 912101, at *2 (S.D.N.Y. Dec. 30, 1998). In another clear example, an employer terminated a woman’s employment after she gave birth, reasoning that her “place was at home with her child.” Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502, 503 (Va. 1997). He also asserted that the plaintiff could “no longer [be] dependable since she had delivered a child . . ., that babies get sick sometimes and [she] would have to miss work to care for her child, and that [the employer] needed to have someone more dependable.” Id.
In some cases, sex discrimination related to family responsibilities takes the form of heightened scrutiny or negative evaluations, particularly of mothers. Employers may, for example, excessively review the work products of employees who are new mothers, wait for them to make a mistake, or try to catch them coming in a few minutes late or leaving a few minutes early. In 2005, the Fourth Circuit upheld a jury’s verdict in favor of a lawyer who began receiving negative evaluations after her supervising partner learned that she had a small child at home. Gallina v. Mintz, Levin, Cohn, Frris, Glovsky & Popeo, 123 Fed. Appx. 558 (4th Cir. 2005). In Gallina, the plaintiff noticed a drastic change in her supervisor’s behavior after he discovered she was a mother. Id. at 560. He began treating her much more harshly than her male counterparts, calling her for example a “f---ing idiot” and a “stupid bitch.” Id. The supervisor also opined about “the commitment differential between men and women, how women lawyers have more demands place[d] on them, and [how] it's very hard for them to balance when they have a family.” Id. After Gallina repeatedly raised discrimination claims with the law firm, to no avail, she was terminated. Id. at 561.
In another case, an employee who had received outstanding reviews and incentive bonuses for her work suddenly became subject to extensive scrutiny of her work and negative comments about her work ethic. Rathbone v. CVS Pharmacy, Inc., No. 3:03CV1478(DJS), 2006 U.S. Dist. LEXIS 30216 (D. Conn. May 12, 2006). While on maternity leave, unforeseen complications arising from her pregnancy forced the plaintiff to request additional leave. Id. at *4. When she returned from leave, her supervisors coerced her into signing a statement that she had engaged in certain behavior that violated company policy and sent the statement to a regional manager who approved her termination. Id. at *8-9. The court refused to grant summary judgment to defendant, holding that evidence the plaintiff adduced demonstrating that others who had not followed company rules to the letter were not similarly disciplined was sufficient to survive the motion. Id. at *19. Significantly, the court stated that a reasonable jury could find that highly critical comments of the plaintiff – including about the “convenient” timing of her pregnancy that would force her to miss the holiday rush – before and during her leave by the ultimate decision maker demonstrated discriminatory animus towards her and established a significant nexus between that hostility and the adverse employment action. Id. at *20-21.
In Walsh v. National Computer System, Inc., 332 F.3d 1150 (8th Cir. 2003), the plaintiff, a top sales person with outstanding reviews prior to going out on maternity leave, was subjected to hostility from her supervisor she returned from maternity leave. The supervisor scrutinized her hours but did not do so with respect the other employees’ hours; refused to allow her to leave to pick up her sick child from daycare; and threw a phone book at her with a direction to find a pediatrician who was open after hours. The Eight Circuit affirmed a damages award in the amount of $625,000.
As noted in the introduction, an area of increasing prominence in FRD litigation is gender stereotyping in violation of Title VII. The seminal case on gender stereotyping is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, Ann Hopkins alleged that she was denied a partnership position because the accounting firm in which she worked had given credence and effect to stereotyped images of women. Hopkins had been called, among other things, “macho,” “masculine,” was told that she needed to take “a course at charm school,” and was instructed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry if she wanted to make partner.”
Six members of the Court agreed that such comments bespoke gender discrimination and declared:
"[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . An employer who objects to the aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job it they do not. Title VII lifts women out of this bind.”
The Court held that an “employer who acts on the basis of a belief that a woman cannot be aggressive or that she must not be, has acted on the basis of gender.”
Fifteen years later, the Court addressed discrimination based on stereotypes of motherhood in Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 121 (2d Cir. 2004). The Second Circuit held that an employment action based on stereotypes about motherhood is a form of gender discrimination that contravenes the provisions of Title VII and the Equal Protection Clause. Id. The plaintiff, Elana Back, was a school psychologist who had received outstanding performance reviews until she became a mother. Id. at 114. She was denied tenure by supervisors who allegedly made comments to her such as that it was “not possible for [her] to be a good mother and have this job” and that they “did not know how she could perform her job with little ones.” Id. at 115. The court ruled that making stereotypical assumptions about a mother’s commitment to her job is sex discrimination, even if the mother does not have evidence that similarly situated fathers were treated differently. Id. at 113. Other stereotyping cases have resulted in similar holdings. For example, in Troy v. Bay State Computer Group, Inc., 141 F.3d 378 (1st Cir. 1998), the Court of Appeals held that a supervisor had impermissibly acted on the stereotypical judgment that pregnant women are poor attendees. In Troy, the employer discharged a woman who had taken leave for illness unrelated to her pregnancy. Similarly, a Court of Appeals upheld a jury verdict for the plaintiff where her supervisor admitted that he did not consider recommending her for a managerial position because he did not think she would want to relocate her family. Lust v. Sealy, Inc., 277 F. Supp. 2d 973 (W.D. Wis. 2003), aff’d on other grounds, 383 F.3d 580 (7th Cir. 2004).
Another egregious example of gender stereotyping and FRD is Plaetzer v. Borton Automotive, Inc., No. Civ.02-3089 JRT/JSM, 2004 WL 2066770 (D. Minn. Aug. 13, 2004). In Plaetzer, the plaintiff was a car salesperson who was married with four children. Her supervisor was very antagonistic toward her, would not give her a set schedule, and made comments about how his own wife did not have childcare problems. He also kept notes on the plaintiff’s “offenses,” which he did not do with other employees. On one occasion, the employee had a doctor’s appointment on her day off and was ordered to come in afterward. Her supervisor then berated her for coming in “late” and told her that she should “do the right thing” and stay home with her children. He added that as a woman with a family, she would always be at a disadvantage at the dealership. The court denied the defendant’s motion for summary judgment, noting that “where an employer’s objection to an employee’s parental duties is actually a veiled assertion that mothers, because they are women, are insufficiently devoted to work, or that work and motherhood are incompatible, such treatment is gender based and is properly addressed under Title VII.”
Another archetypical case in the realm of gender stereotyping and FRD is Stern v. Cintas Corp., 319 F. Supp. 2d 841 (N.D. Ill. 2004). In Stern, a salesperson’s supervisor told a recruiter not to take applications from women because the employer would not hire women in its sales force. When the plaintiff asked why there were no women sales associates she was told that women do not stay long term because they get married and have babies. After the plaintiff became pregnant for a second time, her name stopped appearing on organizational charts because, according to her supervisor, she “wasn’t going to be [there] anyway” because of her maternity leave. The plaintiff was also excluded from weekly meetings because her supervisor thought that, being pregnant, she would be more comfortable answering phones. The plaintiff sent a letter alleging pregnancy discrimination with the employer’s CEO and the EEOC. The plaintiff’s supervisor then transferred her to another position, claiming he no longer needed her assistance. Within a month after submitting her letter, the employer terminated her, claiming that there was no role for her after a sales management reorganization. She was not considered for a sales position because her supervisor assumed that she would not want a job that required travel after her baby was born, although the plaintiff had never suggested that this was the case. The District Court denied the employer’s motion for summary judgment on her sex discrimination claim.
The gender stereotyping analysis was also used in the recent case of DeCaire v. Gonzales, 474 F. Supp. 2d 241 (D. Mass. 2007). In DeCaire, the male US Marshall for the District of Massachusetts promoted a male employee over DeCaire, a female, even though she was objectively the more qualified candidate. Though ultimately the evidence of gender stereotyping could not support the plaintiff’s claim due to timeliness issues, the court stated:
“[T]he decision following [the Marshal’s] initial, personal meeting with DeCaire to transfer her to a non-investigatory position in Worcester while transferring McKearney, a male, to her position . . . was gender discrimination pure and simple, the result of stereotypical male views of gender roles.
Id. at 253. Specifically, the court stated that the Marshal’s decision was based on his views of child-rearing and the appropriate social role of a mother.
A divisive issue among courts has been whether a successful claim for FRD based on so-called “sex-plus” or “gender-plus” discrimination requires a comparator of the opposite sex. “Sex-plus” or “gender-plus” is the term for discrimination based not only on a person’s sex, but also on some other factor, such as parental or marital status. The concept of sex plus discrimination has been explained in the following way, which clarifies that the discrimination must be based ultimately on sex, not on the “plus” characteristic:
When one proceeds to cancel out the common characteristics of the two classes being compared ([e.g.] married men and married women) . . . the cancelled-out element proves to be that of married status [the “plus” factor], and sex remains the only operative factor in the equation.
Coleman v. B-G Maint. Mgmt. of Colorado, Inc., 108 F.3d 1199 (10th Cir. 1997) (quoting Lex K. Larson, Employment Discrimination § 40.04, at 40-12 (2d ed. 1996)). The Supreme Court first recognized sex-plus discrimination in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). In Martin Marietta, the Court held impermissible an employer’s policy of rejecting applications from women with preschool-age children while it accepted applications from men with children of the same age. Whether there must be an actual similarly-situated employee of the opposite sex who does not suffer discrimination (a “comparator”) or if stereotyping based on the “plus” characteristic is sufficient has been disputed in courts since Martin Marietta. In Back v. Hastings on Hudson Union Free School District, a 2004 Second Circuit case cited above, the court held that a male comparator was not necessary where the sex discrimination was based on a stereotypical assumption that women who are mothers will not be sufficiently committed to their jobs. In reaching this conclusion, the court reasonsed that a stereotype itself is an invidious form of sex discrimination.
Similarly, in McGrenaghan v. St. Denis School, 979 F.Supp. 323, 327 (E.D. Pa. 1997), District Court allowed a “sex-plus” discrimination action to survive summary judgment where the plaintiff, a mother with a disabled child, was replaced by a woman without disabled children, suggesting that the stereotype that mothers are not as dedicated to their jobs as non-mothers was sufficient to make out a prima facie case for discrimination. But other courts have held that a comparator of the opposite sex is required in order to make out a prima facie case of discrimination. For example, a District Court held that the plaintiff did not establish prima facie case for sex discrimination where “there [was] no evidence that Plaintiff was treated differently than were males with young children, or males in general for that matter.” Philipsen v. University of Michigan Bd. of Regents, No. 06-CV-11977-DT, 2007 WL 907822, at *9 (E.D. Mich. Mar. 22, 2007). In reaching its conclusion, the Philipsen court cited several other cases that have similarly required an actual male comparator. Among these is Fuller v. GTE Corporation/Contel Cellular, Inc., 926 F.Supp. 653 (M.D. Tenn. 1996), in which the District Court held that the plaintiff had to show that men with young children had been treated differently from her.
The Philipsen court also cited Fisher v. Vassar College, 70 F.3d 1420 (2nd Cir. 1995), where the court held that "[t]o establish that [the defendant] discriminated on the basis of sex plus marital status, plaintiff must show that married men were treated differently from married women." Id. at 1446. It is interesting to note, however, that Fisher predated Back, also a Second Circuit case which reached the opposite holding. This discrepancy highlights the unresolved nature of the dispute. In sum, while some courts may find it sufficient in the context of gender stereotyping and other kinds of FRD based on sex to show that the person was discriminated against because of his or her sex, the employee’s case is significantly stronger in all courts where there is a comparator of the opposite sex.
B. Family and Medical Leave Act
Leave-related FRD claims may be also brought under the FMLA. If, for example, the employee has taken FMLA-protected leave, discrimination that occurs after the leave can be redressed through the anti-retaliation provisions of the FMLA. Not all employees are protected by the FMLA, however, because they have not worked at their company for a sufficient period or because their employer does not meet the 50-employee threshold for FMLA coverage. In such cases, employees may look state law counterparts to the FMLA that may have lower thresholds for protected leave. FMLA causes of action also include denial of leave, particularly in the case of men wishing to take leave to care for a newborn, and interference with leave, such as asking a new mother to work during maternity leave or asking her to return from leave early.
Interference with leave may be prospective or concurrent with the requested leave in violation of the FMLA’s anti-interference provision, 29 U.S.C. § 2615. For example, in Glunt v. GES Exposition Services, Inc., 123 F. Supp. 2d 847 (D. Md. 2000), the defendant-employer demoted the plaintiff one month before her scheduled maternity leave, apparently to reduce the amount she would receive under the company’s paid leave policy. Id. at 870. The defendants argued that because the plaintiff was not entitled to paid leave at all, the demotion did not constitute interference with her right to take FMLA leave. Id. The District Court disagreed:
‘[i]nterfering with’ the exercise of an employee's rights ... includes ... not only refusing to authorize FMLA leave, but discouraging an employee from using such leave [and] manipulation by a covered employer to avoid responsibilities under FMLA.” 29 C.F.R. § 825.220(b). “Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c). Therefore, where an adverse employment action is influenced by the taking of family leave, the employer interferes with that employee's exercise of their rights under the FMLA.
Id. at 870-71. In some cases, the nexus between the leave and the adverse action is difficult to demonstrate, but courts accept reasonable inferences for purposes of a summary judgment motion. For example, in a case dealing with a plaintiff’s request for leave to care for her sick mother, the court denied summary judgment where she showed that she requested leave shortly before a “reduction in force” occurred that eliminated only her position and where she was asked to recreate her work hours and FMLA request just two weeks prior to her termination. Van Diest v. Deloitte & Touche, LLP, 1:04 CV 2199, 2005 U.S. Dist. LEXIS 22106, at *14-15 (Sept. 30, 2005).
As with Title VII, gender stereotyping plays a role in claims brought under the FMLA. Hopkins’s progeny include a 2003 Supreme Court case explicitly recognizing how gender stereotypes of caregiving lead to discrimination in the workplace for both women and men. Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003). Though the case was primarily about whether FMLA applied to states, the Court took the occasion to explore the purpose of the FMLA. In Hibbs, Chief Justice Rehnquist stated:
Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis . . . [T]he FMLA is narrowly targeted at the faultline between work and family – precisely where sex-based overgeneralization has been and remains strongest.
Id. at 736, 738. Such language provides a promising springboard for employees and plaintiffs’ attorneys seeking to bring FRD claims under the FMLA.
C. Other FRD Statutes
1. Americans with Disabilities Act
A number of successful FRD cases have been brought under the Americans with Disabilities Act. For example, a District Court found that a mother made out a prima facie claim of ADA discrimination where she was not hired by a company taking over her firm, allegedly because the employer knew that she had an infant daughter with serious health problems. Abdel-Khalek v. Ernst & Young, No. 97 CIV. 4514 JGK, 1999 WL 190790, at *6 (S.D.N.Y. 1999). In reaching its holding, the court relied on the “association” clause of the ADA, which says that the word discriminate includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Id. at *3 (quoting 42 U.S.C. §12112(b)(4)). In a similar case two years earlier, the District Court denied summary judgment against a mother of a disabled child relying on the association clause of the ADA. McGrenaghan v. St. Denis School, 979 F.Supp. 323 (E.D. Pa. 1997). In McGrenaghan, a full-time teacher in the Archdiocese of Philadelphia was transferred from full-time teaching status to half-time teaching and half-time resource aide status. While there was no change in pay, the court held that the difference in duties could be an adverse action in violation of the ADA.
Other cases rely not on the association clause, but rather on the fact that the employer views a person as disabled because of pregnancy or other family-related conditions. For example, in one case a mother brought an ADA discrimination claim where she was terminated allegedly because her employer regarded her pregnancy-related conditions, such as nausea, dizziness, and cramping, as a disability. Cerrato v. Durham, 941 F. Supp. 388, 393 (S.D.N.Y. 1996). The court denied the defendants’ motion to dismiss, specifically noting that the employer granted similar days off to other incapacitated individuals. Id. at 394.
2. Pregnancy Discrimination Act
The Pregnancy Discrimination Act is an amendment to Title VII specifically designed to prevent a common form of FRD. The PDA has been used to protect women who are pregnant or on maternity leave, as well as to combat discrimination that arises because a woman might become pregnant in the future. In a particularly egregious case, a woman who became pregnant was repeatedly cajoled by her supervisor to have an abortion. Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 854-55 (8th Cir. 1998). In fact, “[o]nce Ek refused to have an abortion, Aune said she would push Ek down a flight of stairs to cause a miscarriage, that Ek would have no way to pay for a baby, and that insurance would not cover the cost of delivering the baby because Ek was pregnant before she was promoted.” Id. Ultimately, after being told that she could never manage a child and a career and thus move up in the company and after being harassed and ordered to do additional lifting while she was pregnant, Ek quit. Id. The Court of Appeals reversed the lower court’s judgment as a matter of law on the plaintiff’s PDA claim. Id. at 859.
Though most cases are not as blatant as Bergstrom-Ek, the PDA is a powerful tool for employees and litigators and is frequently used to bring FRD claims. For example, in one case the employee was a branch manager of one of the employer’s banks, and after she notified her supervisor that she was pregnant, the employer’s evaluations of her job performance “took a sudden and remarkable turn for the worse.” Cahill v. Northeast Sav., F.A., 91-CV-1278, 1993 U.S. Dist. LEXIS 11650, at *3 (N.D.N.Y. Aug. 16, 1993). When she informed her employer that she wished to return to work after the birth of her daughter, the employer offered her a position either as a teller or a customer service representative. She refused both positions – which were significant demotions – and was terminated. Though the employer denied that the downturn in its evaluations of the employee’s positions were as a result of her pregnancy. The plaintiff, however, showed that prior to her announcement that she was pregnant the employer believed that she was qualified for her position and manifested its approval by promoting her to successively higher positions of authority and responsibility. Only after her pregnancy announcement did the employer change its view of her ability to perform her managerial duties. The court held that the plaintiff had made out a prima facie case under the PDA and denied summary judgment to the employer.
3. The Employee Retirement Income Security Act
Though primarily designed to protect employees’ pensions and benefit plans, ERISA has proven useful as a vehicle for remedying family responsibility discrimination. For example, in one case a mother was hired but discharged the next day – before she started working – when her employer discovered that her infant child had been born several months earlier with hydrocephalus. Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991). The plaintiff’s employer admitted that it terminated her so that its benefit plan would not be burdened with the prospective high medical costs for her child. Id. at 997. The court rejected defendant’s argument that Fleming was not a “participant” in the benefit plan for purposes of ERISA and upheld the District Court’s finding that her employer discriminated against her in violation of ERISA. Id. at 998. In a more recent District Court case, an employer’s summary judgment motion was denied where a pregnant woman was terminated just hours after requesting maternity leave and associated benefits. Grew v. Kmart Corp. of Ill., Inc., No. 05 C 2022, 2006 U.S. Dist. LEXIS 6994, at *25-27 (N.D. Ill. Feb. 26, 2006).
II. SEX DISCRIMINATION: GENDER STEREOTYPING IN OTHER CONTEXTS
While gender stereotyping occurs in the context of family responsibilities as described above, it is often cited in other claims. Some cases closely mirror Price Waterhouse itself. Another common context for gender stereotyping is sexual harassment cases. Often such cases involve men or women criticizing people’s perceived failure to behave in ways they assume to be consistent with heterosexuality. And gender stereotyping occurs in other contexts, such as stereotyping of transsexuals.
A. The Price Waterhouse Model
A prime example of a case mirroring Price Waterhouse is Collins v. Cohen Pontani Lieberman & Pavane, 2008 WL 2971668 (S.D.N.Y. July 31, 2008). In Collins, the plaintiff was an attorney who suffered ongoing mistreatment, apparently based on her failure to conform to sexual stereotypes. For example, a managing partner told her on one occasion that she was not “sweet” enough and needed to use more “sugar” with any paralegal who was uncooperative. The court held that this could reasonably be perceived as evidencing the managing partner’s belief that women should behave in such a manner to get ahead. Eventually, after repeatedly being denied raises and promotions, the plaintiff was terminated after sending an email to the managing partners complaining that “all the women litigators in this firm, regardless of their level of experience or talent, have been relegated to non-partnership track support roles, thus limiting their career development as well as their ability to undertake substantive trial work.” The court allowed the case to go forward on her Title VII claims.
B. Gender Stereotyping and Sexual Harassment
There are two main categories of sexual harassment claims: hostile work environment claims and quid pro quo claims, and of these, hostile work environment is the more common in the context of gender stereotyping. To prove that a plaintiff was the victim of a hostile work environment because of his or her sex, the plaintiff must prove that: (1) he or she suffered intentional, unwanted discrimination because of his or her sex; (2) the harassment was severe or pervasive; (3) the harassment negatively affected the terms, conditions or privileges of his or her work environment; (4) the harassment would detrimentally affect a reasonable person of the same sex; (5) management knew about the harassment, or should have known, and did nothing to stop it.
Same-sex sexual harassment is common in gender stereotyping cases, and the Supreme Court has recognized that while sexual orientation is not a protected category, such harassment claims may be brought under Title VII. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998). The Oncale Court expressly held “that nothing in Title VII necessary bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Id. at 79. Therefore, Title VII, and state anti-discrimination statutes modeled after Title VII, reach same-sex harassment, regardless of whether the harassment arose from “proposals of sexual activity” or from “general hostility to the presence of women in the workplace.” Id. at 80. Thus, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”
Following the Oncale decision, the Third Circuit set forth three alternative theories by which same-sex sexual harassment can be proven under Title VII:
There are several situations in which same-sex harassment can be seen as discrimination because of sex. The first is where there is evidence that the harasser sexually desires the victim. . . . [The second is where] the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function. . . . [The third] by presenting evidence that the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.
Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001) (emphasis added). A recent case brought in the Eastern District of Pennsylvania recently cited the Third Circuit’s Bibby decision for the proposition that gender stereotyping is gender discrimination. Ogilvie v. Northern Valley EMS, Inc., No. 07-485, 2008 WL 4761717 (E.D. Pa. Oct. 29, 2008). In Ogilvie, the plaintiff claimed that he was subjected to a hostile work environment based on same-sex sexual harassment. The plaintiff’s business allegedly propositioned him by phone, inviting the plaintiff to come to his house to discuss company issues, but also to drink and spend the night in his bed. The District Court held that these facts fit not into the gender stereotyping category of same-sex discrimination cited by the Bibby court, but rather into the “sexual desire” category
In Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864 (9th Cir. 2001), Antonio Sanchez, one of the three plaintiffs, alleged that he was repeatedly taunted by his male co-workers and a supervisor because, in essence, he did not act like a man. Specifically, his co-workers and a supervisor (1) “repeatedly referred to Sanchez in Spanish and English as ‘she’ and ‘her;’” (2) “mocked Sanchez for walking and carrying his serving tray ‘like a woman;’” (3) “taunted him in Spanish and English, as, among other things, a ‘faggot’ and a ‘fucking female whore;’” and (4) “derided [him] for not having sexual intercourse with a waitress who was his friend.” Id. at 870, 874. Critically, “no witness — including the supervisor accused of participating in the harassment — testified to the contrary.” Id. at 872. The Ninth Circuit agreed that Mr. Sanchez was discriminated against on the basis of his sex, because he failed to conform to a male stereotype. The Ninth Circuit applied the Price Waterhouse analysis in reaching its conclusion, holding that Title VII is similarly violated where a male employee is discriminated against for not conforming to stereotypes of how men should behave. Id. at 874-75.
Similarly, in Singleton v. United States Gypsum Company, 140 Cal.App.4th 1547 (2006), a California Court of Appeal found same sex harassment constituted unlawful discrimination on the basis of sex, in violation of California’s Fair Employment Practices Act, which, although it also protects against sexual orientation discrimination, is interpreted consistent with Title VII. In Singleton, plaintiff alleged he was subjected to persistent verbal harassment and taunts by male co-workers who referred to him as “sing-a-ling” (a reference to a homosexual movie character), assertions that he was having oral sex with his supervisor, and threats of violent sexual attack. When plaintiff complained, his supervisors told him “just tell him fuck you and keep working,” and instructed him to “just ignore” the harassment and “do your job.” The Court of Appeal found that the harassment the plaintiff was subjected to constituted unlawful harassment “because of sex”. Relying on Oncale, the court noted that gender-based harassment need not be motivated by sexual desire to be actionable, “Sexual harassment occurs as in this case when sex is used as a weapon to create a hostile workplace.” Id. at 1564. These cases show that harassment that, at first glance, appears to be based on sexual orientation, can be actionable under Title VII where it is grounded in sexual stereotypes.
A district court in New York recently held that a gay employee (Sabo) who was repeatedly taunted and harassed by his co-workers who did not believe or know that he was gay could, in fact, state a Title VII sexually hostile work environment claim where the discrimination was based on gender stereotypes. EEOC v. Grief Bros. Corp., No. 02-CV-468S, 2004 WL 2202641 (W.D.N.Y. Sept.30, 2004). Critical to the resolution of the Title VII harassment claim was the deposition testimony of the harassing co-workers, who testified that they “did not know that he was a homosexual, nor did they believe that he was.” Id. at *10. As a result, the court denied the defendant’s motion for summary judgment, because “there is sufficient evidence in the record from which a jury could find that Sabo was not harassed because he is a homosexual, but rather, was harassed because he is a male.” Id. at *11. Under Price Waterhouse and Oncale, Sabo’s “nonconformance with gender stereotypes” meant that the resulting harassment of him was actionable under Title VII. Id. at *12-*13. In most cases, the evidence must clearly show that the plaintiff was discriminated against based on sex, and not merely sexual orientation. Recently, the Court of Appeals acknowledged that a claim for gender stereotyping was a colorable Title VII claim but that the plaintiff failed to meet her burden of proof in Kiley v. American Soc. for Prevention of Cruelty to Animals, 296 Fed. Appx. 107 (2d Cir. 2008). In Kiley, a gay woman was terminated allegedly because she failed to conform to the gender stereotypes of womanhood. To support her claim, she cited comments by her coworkers that she should “watch out” and that her transfer was because her employer thought it would be less awkward for everyone because she was gay. She also stated that she had filed a complaint for sex discrimination and noted on her complaint that she believed it was because she was gay. While acknowledging that gender stereotyping may ground a Title VII claim, the Kiley court found that none of the behavior linked directly to gender discrimination that she failed to show that any invalid assumptions by her supervisor about appropriate behavior for a woman led to an adverse employment action.
Several cases in the Sixth Circuit have drawn sharp distinctions between sexual orientation and gender discrimination based on stereotyping. In Vickers v. Fairfield Medical Ctr., 453 F. 3d 757 (6th Cir. 2006), the Court of Appeals distinguished Smith and holding that the harassment about which the plaintiff complained was “more properly viewed as based on Vickers’ perceived homosexuality, than on his gender non-conformity” because he “failed to allege that he did not conform to gender stereotypes in an observable way at work.”) (emphasis added). A recent District Course case cited the Vickers holding in reaching a similar conclusion. Taylor v. H.B. Fuller Co., No. 06cv854, 2008 WL 4647690 (S.D. Ohio, Oct. 20, 2008). In Taylor, the plaintiff, after twenty years of exemplary service, began to be subjected to unwelcome sexual touching as well as bizarre instances of harassment such as the placement of a bloody tampon on his desk. The plaintiff alleged that this treatment was because his coworkers perceived him as too effeminate. The court, however, citing Vickers, held that the discrimination was based on his homosexuality and that sexual orientation discrimination does not violate Title VII.
The Ninth Circuit, in an en banc decision, held that essentially all same-sex harassment can be actionable under Title VII because it inevitably involves some form of gender stereotyping. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 922 (2003). It should be noted that there was a concurring opinion based on a different rationale, two other concurring opinions, and a strongly stated dissenting opinion, so it is possible that other circuits may not follow the lead opinion. In Rene, the plaintiff was an openly gay butler at a Los Vegas hotel, who alleged that he was constantly harassed by his supervisor and several co-workers (all male), because he was gay. Id. at 1064. The district court granted summary judgment on the grounds that Title VII did not cover discrimination based on sexual preference. Id. A panel of the Ninth Circuit affirmed, but the en banc court reversed, on the grounds that the plaintiff “has alleged physical conduct that was so severe or pervasive as to constitute an objectively abusive working environment,” reaching the level of physical assault, i.e., the supervisor and co-workers “grabbed [the plaintiff’s] crotch and poked their fingers in his anus.” Id. at 1065. The Ninth Circuit cited a variety of appellate cases in which “physical sexual assault has routinely been prohibited as sexual harassment under Title VII,” because “such harassment -- grabbing, poking, rubbing or mouthing areas of the body linked to sexuality -- is inescapably ‘because of sex.’” Id. at 1065-66 (collecting cases). Thus, his sexual orientation was not relevant, since in traditional male-on-female harassment cases, the victim was not denied relief because she “was, or might have been, a lesbian. The sexual orientation of the victim was simply irrelevant. If sexual orientation is irrelevant for a female victim, we see no reason why it is not also irrelevant for a male victim.” Id. at 1066; see also M. Talbot, “Men Behaving Badly,” N.Y. Times Sunday Magazine, Oct. 13, 2002, at 52. Despite its broad language, the particularly egregious and physical nature of the harassment may have contributed to the Ninth Circuit’s decision, and the court’s very divided opinion suggests that it is important for a plaintiff to show if at all possible that the discrimination was based on a sexual stereotype and not solely on his or her sexual orientation.
C. Discrimination against Transsexuals
As noted above, not all gender discrimination claims are strictly sexual harassment claims. A new issue in gender stereotyping cases involves transgendered employees. The Sixth Circuit recently held that an employee who alleged that discrimination occurred because the employee was undergoing treatment for “gender identity disorder” which resulted in the employee’s appearance becoming more feminine, could state a Title VII claim for gender discrimination. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). Here, the co-workers “began questioning him about his appearance and commenting that his appearance and mannerisms were not ‘masculine enough,’” and a supervisor met with the city’s attorney “with the intention of using Smith’s transexualism and its manifestations as a basis for terminating his employment” through requiring the plaintiff “to undergo three separate psychological evaluations” which they hoped would lead to his resignation or refusal to comply, the latter of which would be grounds for terminating his employment for insubordination. Id. at 568, 569. The Sixth Circuit agreed that, under Price Waterhouse, Azteca Restaurant and similar gender stereotyping cases, Mr. Smith had stated a case for sex stereotyping and gender discrimination based on “his failure to conform to sex stereotypes concerning how a man should look and behave.” Id. at 572. The defendants’ petition for rehearing en banc was denied on October 18, 2004.
In another case, Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), the Sixth Circuit drew upon Smith v. Salem and held that a pre-operative male to female transsexual who failed the probationary period required to become a police sergeant was a member of a protected class when he alleged discrimination on the basis of a failure to conform to gender stereotypes. The court stated, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination irrespective of the cause of that behavior; a label, such as “transsexual” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his gender non-conformity.” Id. at 737. Although Smith and Barnes did not involve harassment claims, the conduct may have been sufficient to bring such claims based on the co-workers’ verbal and physical conduct.
 In contrast, where the plaintiff insists that the harassment was based on his or her sexual orientation, then there can be no Title VII claim. See, e.g., Bianchi v. Philadelphia, 183 F. Supp. 2d 726, 737-38 (E.D. Pa. 2002) (“His unwavering persistence in presenting his complaint as one concerning his alleged sexuality, rather than one concerning his alleged failure to meet a masculine ideal, defeats his Title VII harassment claim.”) (distinguishing Azteca Restaurant); see generally S. Duffy, “Gay Bias Case Fails, but Judge Approves ‘Stereotype’ Theory,” Legal Intelligencer (Philadelphia), May 28, 2003.
© Copyright 2009, Debra S. Katz, Katz, Marshall & Banks, LLP.
Debra S. Katz is a partner with Katz, Marshall & Banks, LLP, a plaintiffs’ employment and civil rights law firm based in Washington, D.C. The firm specializes in the representation of plaintiffs in employment law, civil rights and civil liberties matters, and whistleblower matters.