Family Rights Discrimination Claims: Breaking More Barriers in the Workplace

By David Conforto

Imagine this scenario: You’ve worked at the same Fortune 500 company since graduating from college. Over the past 15 years, you’ve steadily climbed the ranks, impressing numerous colleagues and superiors along the way. For as long as you can remember, you’ve had your eye on your division’s coveted Vice President position. Finally, it appears that the position will soon open up and, thanks to your hard work and dedication, you’re a shoe-in for the job.

There are two variables, however, that you didn’t account for in evaluating your candidacy and which, unfortunately, the powers-that-be did: You’re female and you just gave birth to your second child. To your utter disbelief, you’re informed that Joe Smith has been named Vice President over you. By all objective measures, he’s the second-best candidate for the job. Mr. Smith joined the company just a couple years back, has less experience, and does not possess the MBA that you juggled work and family obligations for several years to obtain. When you inquire why you weren’t selected for the position, you get the following matter-of-fact response, “We didn’t think you’d be up for the job since you just had a baby. The position requires a ton of travel, which we assumed you wouldn’t like.” Notably, Mr. Smith and his partner have three kids.

Unfortunately, the scenario described above represents an all-too-common fact pattern for the individuals whom I represent. At its core, this is gender discrimination, which a Massachusetts Superior Court recognized in 2006 in Sivieri v. Commonwealth of Massachusetts. In denying the Commonwealth’s motion for summary judgment in that case, the court confronted the obvious, stating: “It would blink reality to deny that a considerable part of our society believes that mothers are principally responsible for the care of young children and are therefore less effective as employees.” The U.S. Supreme Court articulated a similar sentiment in Nevada Department of Human Resources v. Hibbs in 2003 and noted the “cycle of discrimination” that results from such a mentality:

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.

This particular type of gender discrimination has also been referred to as family rights discrimination and, more recently, maternal profiling – a term popularized by members of the national grassroots group, MomsRising. According to the Center for WorkLife Law, the number of lawsuits filed by workers alleging family rights discrimination has grown exponentially over the past three decades, from a total of eight in the 1970s to 358 in the first half of the 2000s. Such cases have provided meaningful recourse to the numerous female employees who suffer workplace discrimination when trying to maintain their dual role as mothers and productive members of the workforce.

Many people unknowingly hold damaging stereotypes based on immutable characteristics like race, disability, and gender. With respect to the latter, the propensity to engage in gender stereotyping is well-documented. In a 2009 study by Dr. Eugene Caruso of the University of Chicago, for instance, researchers asked study participants to consider hypothetical job opportunities with the following variables: starting salary, location, holiday time, and sex of the potential boss. The participants’ decisions matched their stated preferences with respect to the first three variables. The boss’s sex, however, turned out to be far more important than the participants stated. Amazingly, on average, participants were willing to pay a 22% tax on their starting salary to have a male boss. This surprising gender-tax manifested itself regardless of whether the study participant was male or female.

As our own First Circuit in Thomas v. Eastman Kodak acknowledged in 1999, “Unwitting or ingrained bias is no less injurious or worthy of eradication than blatant or calculated discrimination.” This could not be truer than in the workplace, where people rely on their paychecks to provide basic necessities for themselves and their family. While significant progress has been made, new barriers will need to be broken as women continue to strive for senior-level, historically male-dominated positions. Recognizing and aggressively litigating such claims will be an essential component in leveling the playing field for women in the workplace.

David Conforto is the founder of Conforto Law Group, P.C., a Boston employment law firm.