Work/life litigation refers to legal action taken against employers for discriminating against a worker or workers due to their family responsibilities. Among the most common types of work/life litigation are cases charging employers with pregnancy discrimination, creating a hostile work environment, unequal pay, disparate treatment, disparate impact, violations of the Family and Medical Leave Act, and violations of the Americans with Disabilities Act. The majority of cases are filed by women, but men are increasingly becoming plaintiffs as well.
When careers of parents derail for reasons seemingly unrelated to performance, the culprit may be a form of gender bias and stereotyping against workers (men as well as women) who play the feminine role of primary caregiver. When women hit the “maternal wall,” they suffer from job penalties once they become mothers. The maternal wall typically is triggered at three points: when a woman gets pregnant, returns from maternity leave, or adopts a flexible work arrangement to accommodate family demands. Men too have sued successfully when denied leaves that are routinely granted to women. Though most suits involve child care, some large judgments have emerged from cases involving workers caring for elders or ill partners.
Women have won maternal wall cases in which, once motherhood becomes salient, their performance reviews drop precipitously, they are held to higher standards than their coworkers, or (often as a result of these practices) they are denied or not considered for promotions or are terminated.
Several different kinds of gender stereotyping emerge in maternal wall cases. Hostile prescriptive stereotyping involves statements that mothers should not be employed. Hostile prescriptive stereotyping seems to be common: People seem to know that it is not appropriate to say “We don’t hire women” but not that it is equally inappropriate to say that mothers belong at home. Also common is “benevolent stereotyping,” which polices women into traditional gender roles in a kinder, gentler tone of voice, as when employers fail to consider a mother for a promotion because they assume (without asking) that she will not want to relocate or travel.
The most common type of work/life litigation is a lawsuit brought under the basic federal antidiscrimination statute, Title VII. Among Title VII cases involving caregiving, the most common type is a disparate treatment suit in which a mother alleges that she has been treated worse than a similarly situated man or that she was penalized by gender stereotypes. In addition, plaintiffs often sue under state antidiscrimination statutes, many of which are more pro-plaintiff than the federal law. Government workers can sue under the equal protection clause of the U.S. Constitution.
Successful lawsuits also have been brought under Title VII disparate impact theories, alleging that a facially neutral employment practice, for example, disallowing use of sick leave to care for dependents, has a disparate impact on women not justified by business necessity. Additional Title VII theories include (a) when a plaintiff alleges a hostile work environment based on sex, (b) when an employee alleges that she was treated so poorly that she has no choice but to quit (constructive discharge), or (c) claims that an employer retaliated against the plaintiff for asserting her legal rights. Maternal wall cases also are filed under the Pregnancy Discrimination Act, the Family and Medical Leave Act, and the Americans with Disabilities Act, which prohibits discrimination against a worker caring for a disabled family member.
Many cases involve substantial damage awards. Most are not reported, because successful cases settle, and settlements are rarely disclosed. Yet more than a dozen awards over $100,000 are public, most of them over $400,000. These numbers dramatize the growing potential for liability if work/family issues are not handled well.
Flexible scheduling, a policy some companies adopt to respond to employees’work/family conflict, has been featured in several lawsuits. In Lovell v. BBNT Solutions (2003), the court held that an employer risked violating the Equal Pay Act when it paid a woman a lower pay rate than other predominantly male workers because she worked a 30-hour, instead of a 40-hour, week. Another case, which was settled, asserted that a systematic refusal to promote people on flexible work arrangements had an illegal disparate impact on women (Goldstick v. The Hartford Inc., 2002). In another case not involving caregiving, a court allowed a suit to go forward when a woman sued over her employer’s abolition of a job sharing arrangement (Tessmer v. Nationwide Life Insurance Co., 1999). Specific types of stereotyping and bias tend to occur in the context of flexible work arrangements. One, which social psychologists call leniency bias, occurs when the rules are applied leniently to members of the in group (usually career-focused employees without caregiving responsibilities) but rigidly to the out group (usually those on flexible work arrangements). A second form of attribution bias occurs when actors attribute their own behavior and that of in-group members to legitimate causes while making very different assumptions about the behavior of the out group. Thus a woman who works part time and is not in her office may be assumed to be tending to her children even when she is at a business meeting, whereas (predominantly male) full-timers may be assumed to be on business even if they are coaching a soccer game.
Work/life litigation is adding a new urgency to employers’ need to handle work/life issues fairly and effectively. While progressive employer policies have been traditionally viewed as optional benefits that companies have discretion to use—or eliminate—at will, case law suggests that workplaces without well-managed work/life policies and practices may run a risk of litigation.
- Biernat, M., Crosby, F. J. and Williams, J. C., eds. 2004. “The Maternal Wall: Research and Policy Perspectives on Discrimination against Mothers.” Journal of Social Issues 60(4):667-849.
- Goldstick v. The Hartford, Inc., No. 00 Civ. 8577, 2002 U.S. Dist. LEXIS 15247 (S.D.N.Y. Aug. 19, 2002).
- Lovell v. BBNT Solutions, Inc., 295 F. Supp. 2d 611 (E.D. Va. 2003).
- Tessmer v. Nationwide Life Insurance Co., 1999 Ohio. App. LEXIS 4633 (Ct. App. Ohio, 1999).
- Williams, J. C. 2003. “The Social Psychology of Stereotyping: Using Social Science to Litigate Gender Discrimination Cases and Defang the Cluelessness Defense.” Employee Rights and Employment Policy Journal 7(2):403-450.