Examples of Unlawful Discrimination Included in the Enforcement Guidance
While Title VII does not prohibit discrimination solely based on parental status, it does prohibit an employer from treating working mothers and working fathers differently. As an example, the EEOC states that it believes an employer violates Title VII by rejecting a mother of two pre-school aged children for an executive training program where she was more qualified than other accepted candidates. The EEOC explains that the fact that men with pre-school aged children and women without children were selected for the program could demonstrate that the employer chose not to select the mother/applicant because of her status as a working mother. This, the EEOC concludes, is discriminatory because it is unlawful to assume that childcare responsibilities will make female employees less dependable, less motivated, and less committed to their career than male employees with the same responsibilities.
The Enforcement Guidance sets forth additional examples of discrimination, including:
- reassigning a woman to a less desirable project based on an employer’s belief that, as a new mother, she will have less time to work on big projects.
- assuming that a woman will not want to work overtime (and not giving her the opportunity to work overtime) because, as a female caregiver, she would rather be at home with her children.
- denying a male caregiver leave to care for an infant under circumstances where the leave would be (and has been) granted to a female caregiver.
- refusing to hire an applicant for a position because the applicant is a divorced father with sole custody of a son with a disability, which the employer believes will have a negative effect on the applicant’s attendance and job performance.
- harassing a woman because she recently returned from maternity leave by, among other things, refusing to change her schedule to permit her to pick up her child from day care, even though other employees’ similar schedule requests have been granted.
The Sivieri Case
The issues raised by the Enforcement Guidance were applied in a recent Massachusetts case. In Sivieri v. Commonwealth of Massachusetts Department of Transitional Assistance, Sivieri was a paralegal with the DTA with no children when hired. After working at the DTA, she became pregnant and, while she was four months from giving birth, Sivieri was denied a promotion that was given to another paralegal whom she helped train. After having her daughter, Sivieri was passed over for other promotions, which were given to women who either had no children or no small children. During the time Sivieri was employed at DTA, she also overheard negative comments by DTA employees and agents about having children and working mothers. She noticed upper-level management included a high proportion of women who were either childless or had no small children. When Sivieri asked her supervisor why she was not promoted, he responded that the arrival of her child lead the DTA to conclude that she no longer sought a promotion. The supervisor also explained that the individuals who were promoted put in extra hours at the end of the week, which Sivieri understood to mean that neither of those persons had small children.
Among her claims, Plaintiff alleged that the DTA discriminated against her based on a gender stereotype in violation of the Chapter 151B, which prohibits discrimination on the basis of sex. The Court considered an issue of first impression in Massachusetts: whether “an employment decision based upon stereotypes about a mother’s role in the workplace constitutes sex discrimination.” The Court first recognized that “parental status” was not a protected class. However, citing to Title VII cases, the Court found that “stereotypical remarks about the incompatibility of motherhood and employment can be evidence of discrimination” and that these kinds of statements reflect a discriminatory animus against a woman’s role in society. Accordingly, the Court denied the DTA’s motion to dismiss the case and permitted Sivieri to present her case to a jury.
Practical Impact of the Enforcement Guidance and Sivieri
Jeffrey S. Siegel, Esq. is an attorney with Morgan, Brown & Joy, LLP. Jeff may be reached at (617) 523-6666 or at email@example.com. Morgan, Brown & Joy, LLP focuses exclusively on representing employers in employment and labor matters.
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