As Proud as GE Is of Jack Welch ....

My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.

Among the quotes from the speech as provided by the ABA Journal on line publication, "“There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Also that women who take "take time off for family could be passed over for promotions if they are 'not there in the clutch.'"

And just in case the point was not made:

Welch said women who take time off can still "have a nice career," but their chances of reaching the top are smaller, according to the Wall Street Journal account. "We'd love to have more women moving up faster," he said. "But they've got to make the tough choices and know the consequences of each one."

It may be that some of his comments were pulled out of context that would have made them seem a little less damning, and it also may be that he is speaking the mind of what many in the workplace (women and men) actually think. In other words saying what is real, not what would be ideal.

But if you were having to defend a discriminatory failure to promote because of gender case brought by a female executive who has taken one or more parental leaves, you would not feel grand about having these words standing as fairly large hurdles to overcome.

Mom of Triplets and Family Responsibility Discrimination in 1st Circuit

Last week the 1st Circuit reversed a summary judgment holding that a mother of triplets had made a sufficient case to go to trial on her charge that she was not selected for a promotion, given to another woman, because the employer applied a stereotype against working mothers. Chadwick v. Wellpoint, Inc. (1st Cir. 3/26/09).

Three comments made by the employer, and contradictory explanations as to why she did not get the position, were enough to convince the Court to send it back to trial. The comments:

1. Two months before the promotion decision was made, the decision maker found out that Chadwick was the mother of three six year olds and sent her an email saying, ""Oh my -- I did not know you had triplets. Bless you!" (A sentiment that most of us would probably share!)
2. During an interview for the position, Chadwick was asked what she would do if an associate did not complete a project on time, and apparently unhappy with her answer, the interviewer responded: "Laurie, you are a mother. Would you let your kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?" ; and
3. In the interview, Chadwick was told, ""if [the three interviewers] were in your position, they would feel overwhelmed."

Interestingly, not only was the person selected female, but she was also a mother of two, ages nine and fourteen. (Chadwick had not only the six year old triplets, but also an eleven year old.) The appellate court gave that claim short shrift.

Working mothers everywhere should take comfort in the view expressed by the Court:

In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. It is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII. However, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

The appeals court did affirm the trial court's decision not to allow expert testimony on sexual stereotyping because the expert did not relate it to the specific individuals. That view is critiqued at Judicial Flubber at the Feminist Law Professors blog.

Family Responsibility Discrimination Doesn't Advance in California

Because of Governor Schwarzenegger's veto of SB 836 which would have added "familial status" as a protected category under California's discrimination laws.

According to the Governor, the bill would not

"only result in endless litigation to try and define what discrimination on the basis of “familial status” means, it will also unnecessarily restrict employers’ ability to make personnel decisions."

Notwithstanding this temporary setback, I don't think anyone should write off family responsibility discrimination as an issue that employers should continue to be concerned about.

Hat tip to one of the better sources for information on current developments in California employment law, Storm's California Employment Law which has the Governor's veto message here.

FRD = MDV, Ohio Jury - $2.1 Million for Mom

I was not kidding earlier this week when I said that family responsibility discrimination was one of the hottest topics in employment law, see here . I didn't know I would have an MDV as proof quite so quickly. Earlier today an Akron, Ohio state court jury ruled in favor of Teresa Lehman who had been passed over for promotion to store manager at a retail store. According to one of the jurors: I think she was very poorly treated because she was pregnant, because she wanted to have a family." Akron woman wins discrimination case.

The news story summarizing the evidence at trial indicated that in a two month period five store managers went to less qualified men, or to women with no children or women who assured their bosses that they would have no more children. According to the story, Lehman had been asked such questions as:

"You're not going to get pregnant again, are you?" "Did you get your tubes tied?" "I thought you couldn't have any more kids." "Are you breast feeding?" and "Are you having any more kids?"

My guess is most would believe that if those things happened some kind of award would be justified. But there is another strongly felt position. Look at a couple of early comments on the story:

Have kids, or run a business. You have a choice. Why should my or any other business suffer because a "Manager" wants time off to have a family? It does not make sense. Kohl's [the employer] should just say "Screw hiring women".....

and this one:

As a man with children and two jobs, one full time and one part time I assure you I am very involved with the raising of my children and I don't have to take time off to do it. The occasional kid sick at school, yes I take off to get them home and then I go back to work. We made the choice to have children and I nor my wife encumbered our jobs to do it. I don't need the Family Leave Act, I don't need what I need to do as a father legislated at all.

Does anyone have an original thought anymore or do we just keep repeating the crap we hear spewed? Does anyone take responsibility for their own actions anymore or should we blame "greedy businesses" for all of our ills?

By the way, I think the judgement should have been for the victim, but not to the tune of 2.1 million dollars . . . ridiculous.

Family responsibility discrimination — it's here with a vengeance.

The EEOC's Two Cents Worth on Family Responsibility Discrimination

With Family Responsibility Discrimination as one of the hottest buzz words in employment law these days, you knew it was only a matter of time before the EEOC weighed in. Today was the day as it issued its Enforcement Guidance for Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. In the accompanying Q&A fact sheet the Commission candidly acknowledges that caregivers are not a protected category:

Q: Are caregivers a protected group under the federal EEO statutes?

A: No. The federal EEO statutes do not prohibit discrimination based solely on parental or other caregiver status. Under the federal EEO laws, discrimination must be based on a protected characteristic such as sex or race. However, some state or local laws may provide broader protections for caregivers. A particular caregiver also may have certain rights under other federal laws, including the Family and Medical Leave Act.

Nevertheless, they still offer twenty examples of potential legal problems ranging from "Unlawful discrimination against women with small children" to "Hostile environment based on association with an individual with a disability." Enough ammunition to keep employers awake a night or two.

Here's the complete list of topics covered:

Background and Introduction
Caregiving Responsibilities of Workers
Work-Family Conflicts
Unlawful Disparate Treatment of Caregivers
Sex-based Disparate Treatment of Female Caregivers
Analysis of Evidence
Unlawful Disparate Treatment of Female Caregivers as Compared with Male Caregivers
Unlawful Gender Role Stereotyping of Working Women
Gender-based Assumptions About Future Caregiving Responsibilities
Mixed-motives Cases
Assumptions About the Work Performance of Female Caregivers
“Benevolent” Stereotyping
Effects of Stereotyping on Subjective Assessments of Work Performance
Pregnancy Discrimination
Discrimination Against Male Caregivers
Discrimination Against Women of Color
Unlawful Caregiver Stereotyping Under the Americans with Disabilities Act
Hostile Work Environment
Retaliation

and the background information that the Commission gathered at its May 21st hearing which proceeded today's release can be found here.

FRD Not Just Federal Rules Decisions Anymore

For those of us who remember when legal research involved a trip to the library not to the keyboard, when we see FRD our first thought is of Westlaw's specialized reporter interpreting the Federal Rules of Civil Procedure. But in today's world, FRD may more often stand for a new variant of discrimination law, family responsibility discrimination.

Before you panic, Congress hasn't passed a new statute, instead FRD is the terminology being promoted by the Center for Worklife Law at Hastings College of the Law. You know they are serious about it as they even have a hotline:

Employees: Think You've Been Treated Unfairly Because of FRD? Call our Hotline at 1-800-981-9495.

In case you aren't sure what might be involved here's their invitation to call the hotline:

Have you been subjected to employment discrimination just because you are a parent or caregiver? Family caregiver discrimination is discrimination on the job based solely on your status as a parent or caregiver. Mothers, fathers, and other caregivers have been passed over for promotion, denied leave, or forced out of their jobs -- sometimes with express statements from employers that their parental status was the reason.

Have you been told you may lose your job if you take time off to take your child to the doctor? Were you not considered for a promotion because your boss assumed you wouldn't want to travel with small children or elderly parents at home? Did you return from maternity leave to find you had been reassigned to a lesser position? If you answered "yes" to any of these questions, you may be the subject of family caregiver employment discrimination.

Here are some examples of real situations in which parents have successfully sued their employers:

• A mother was terminated from her job "because she was no longer dependable since she had delivered a child."
• A male Maryland State Trooper was denied leave to care for his newborn and told by his supervisor that his wife would have to be "in a coma or dead" for a man to qualify for leave as the primary caregiver.
• An employer told a mother that he didn't think mothers should work, saying "I don't see how you can do either job well," and that "women are not good planners, especially women with kids."
• An employer stated that he preferred to hire unmarried, childless women because they would give 150% to the job.

The above cases are obvious examples of outspoken discrimination. But there are less obvious forms of discrimination that are just as serious. In addition to being terminated or passed over for promotion, parents and caregivers might find they get less desirable job assignments, are forced to work difficult schedules, are denied training opportunities, or receive unjustifiably negative performance reviews. Some job applicants do not even get their foot in the door because of discriminatory hiring practices.

What can you do? Talk with one of the attorneys at WorkLife Law about your situation. If the attorney thinks you might have a case or might need legal advice, you will be given the name of an attorney near you who can meet with you to discuss your situation further. There is no charge to talk with a WorkLife Law attorney, but attorneys to whom you are referred will charge you their standard rates.

I have been seeing references to FRD and the Hastings program for the last few months, but it was an email from the SP3Group that brought it to my attention today, Family-Duty Discrimination Lawsuits Up.