(Article originally published in NH Business Review, August 14, 2009 - http://www.nhbr.com/apps/pbcs.dll/article?AID=/20090814/INDUSTRY04/908129924)
Jane is a long-time employee of Acme Corp. Despite great demands in her personal life (she’s a part-time student and a mother of four, including triplets), she’s an excellent worker and has always had good performance reviews. Jane and another employee, Karen, applied for the same promotion. While Jane had more experience and better scores on her evaluations, Karen performed better in the interview and was offered the job. Later, one of the hiring managers tried to soften the blow by telling Jane, “It was nothing that you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” Jane has sued Acme Corp. for sex discrimination. Is the company liable?
Maybe. A case recently decided by the United States Court of Appeals for the First Circuit in Boston suggests that off-handed remarks, even if well-intentioned, may expose an employer to liability for sex discrimination.
The case of Laurie Chadwick v. Wellpoint, Inc. and Anthem Health Plans of Maine, Inc., decided in March, 2009 was brought by Laurie Chadwick, who had worked for seven years as a Recovery Specialist in the Maine office of health insurance company WellPoint, Inc. Chadwick, who is the mother of four, including an eleven-year-old son and six-year-old triplets, was also taking one course per semester at the University of Southern Maine. Chadwick’s husband stayed home with the children during the day, and her childcare responsibilities never affected her work.
With the encouragement of her supervisor, Chadwick applied for a promotion to a Team Leader position. Chadwick was one of two candidates for the position, and she thought that she was the front-runner for the promotion since she had always received excellent performance reviews and had already been performing many of the duties of a Team Leader.
Chadwick and the other candidate (also a woman) were interviewed by three managers (all women). Despite Chadwick’s superior qualifications—she had been in the Recovery Specialist position for seven years compared to the other candidate’s one year of experience, and she had higher scores on her most recent performance evaluation—the other candidate performed better in the interviews, and the managers decided to offer the position to the other candidate.
In what turned out to be “an ill-advised attempt to soften the blow,” the hiring manager tried to console Chadwick by telling her, “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” She also told Chadwick that if the three interviewers were in Chadwick’s position “`we` would feel overwhelmed.” Finally, she tried to encourage Chadwick by telling her “there would be something better down the road,” and that she would look back and be glad that this “opportunity didn’t work out because I’m happier with this down the road.”
Chadwick sued WellPoint for sex discrimination, claiming that she was passed over for the promotion because of the sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their childcare responsibilities. Chadwick pointed to the hiring manager’s comments as evidence of discrimination, as well as two other statements made leading up to and during the interview process. First, when one of the hiring managers learned, a couple of months earlier, that Chadwick had triplets, she emailed Chadwick: “Oh my – I did not know you had triplets. Bless you!” Second, during the interview, one of the hiring managers didn’t like Chadwick’s answer to a question about how she would react to an employee missing a deadline. She said, “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?”
The lower court granted summary judgment in favor of the employer because the manager had not explicitly said that Chadwick’s gender was the basis for the assumption that she would not be able to balance the demands of work and home. The First Circuit reversed, holding that a jury could reasonably determine that she was passed over because of a sex-based stereotype—that as a woman with four small children to care for, she could not handle the job. The court gave no weight to the fact that the other candidate who got the job was a woman and a mother of two. The court pointed out that the focus of Title VII is the protection of the individual employee rather than the protection of a minority group as a whole. Non-discrimination against one mother cannot offset discrimination against another.
In light of this decision, managers should heed the court’s advice that, while an employer is free to take appropriate action when a parent’s childcare responsibilities actually interferes with job performance (whether that parent is a mother or a father), the employer may not assume that a woman’s work performance will suffer because of her family situation. The First Circuit’s ruling clears the way for Chadwick’s case to proceed to a jury trial.
Adam Hamel is an Associate in the Employment Practices Group of McLane, Graf, Raulerson & Middleton, Professional Association. Adam can be reached at 628-1189 or [email protected]. The McLane Law Firm is the largest law firm in the State of New Hampshire, with offices in Concord, Manchester, Portsmouth and Woburn, Massachusetts.