Family battleground

NEW YORK – Meeting the demands of both job and family can be daunting for any working mother – or father. However, recent court rulings are sending a strong warning to employers: Don’t assume such juggling acts will lower workplace performance.

“It’s not appropriate to disadvantage women because they’re mothers,” said law professor Joan Williams. “In the past, people were very dubious these cases could win in litigation, but now it’s clear they can.”

Williams, director of American University’s Program on WorkLife Law, contends that many working women eventually collide with what she calls “the maternal wall” – career roadblocks arising from employers’ assumptions that motherhood will prevent a woman from being fully dedicated to her job.

“Discrimination against parents and other caregivers in employment is becoming a new battleground,” Williams said. “An increasing number of employees are suing their employers because they lost their jobs, were passed over for promotion, or were treated unfairly based on their responsibilities to care for children or others.”

Williams’ arguments were echoed forcefully in April by a federal appeals court in New York, which ruled that workplace stereotyping about mothers can qualify as gender discrimination. In what women’s rights advocates depicted as a landmark opinion, the court said school psychologist Elana Back could proceed with a lawsuit against two superiors – both women – who denied her tenure in Hastings-on-Hudson, N.Y.

Overturning a lower court decision to quash the lawsuit, Judge Guido Calabresi said Back could proceed without having to prove that fathers were treated better than mothers by the school district.

Wrote the judge, “It takes no special training to discern stereotyping when someone claims that a woman cannot be a good mother and work long hours or be in a job that requires a strong commitment if she has little ones at home.”

No trial date has been set yet, but Back – in a message e-mailed to the Associated Press – said she hopes her case helps women nationwide.

“There are millions of working mothers who are successful at both career and family, yet their careers suffer due to gender-biased thinking by their employers,” she wrote. “I look forward to my day in court to carry the banner for working moms.”

According to the Program on WorkLife Law, there have been about 40 recent cases in which employees successfully argued that they were discriminated against because of their roles as parents or caregivers.

Several cases involved men – including one seeking to care for his ailing wife, another for his elderly parents.

However, Jocelyn Samuels of the Washington-based National Women’s Law Center said mothers are the predominant victims of such discrimination.

“Women who are on the fast track can find themselves derailed when they decide to have children,” she said. “There’s still an automatic presumption that women will put their child-rearing responsibilities before their employment commitment.”

The federal Equal Employment Opportunity Commission, which handles job discrimination complaints regarding gender and other grounds, does not specifically track allegations of parenthood-related bias. But it could press gender bias charges against any company that treats working mothers worse – or better – than working fathers.

Dianna Johnston, EEOC assistant legal counsel, suggested that employers concerned about a parent’s ability to juggle home and work should follow the approach recommended in dealing with a disabled worker.

“You should not assume that because somebody has a disability, they can’t perform the job,” Johnston said. “You tell them what the job requirements are, and ask them, ‘Can you do that?’ “

Organizations representing employers recommend that businesses strive to help all their workers, parents or not, attain a satisfying job/family balance through flexible schedules and other options.

“If you only offer flexibility for women with children, you’re setting yourself up for a problem with the other employees,” said Jennifer Schramm of the Society for Human Resource Management.

General Mills, among the major companies often praised for effective family-friendly policies, has options available for all employees, and also one feature at its Golden Valley, Minn., headquarters that is particularly prized by working mothers – an onsite infant care center.

Ellen Galinksy, president of the New York-based Families and Work Institute, said about 40 percent of all workers nationwide, male and female, suspect their employers will hold it against them if they take advantage of programs like paternity leave or flex time.

“But when a company promotes those policies and believes in them, the numbers change,” she said.

Cynthia Calvert, an attorney who works with Williams at the Program on WorkLife Law, has been advising employers how to avoid lawsuits of the sort filed by Elana Back, the school psychologist. Calvert recommends expanding corporate anti-discrimination policies, and giving supervisors updated training to make clear that bias related to parenting or other caregiving is unacceptable.

Sometimes, when employers discriminate against caregivers, they believe they are accommodating the employee’s presumed focus on family needs, Calvert said.

“We say, ‘Give the worker options – don’t make assumptions,’ ” she said.

Williams acknowledged that a fear of lawsuits might prompt some employers to be more cautious about what they say to working mothers, without actually changing their inner bias toward them.