Ten lessons for practitioners about family responsibilities discrimination and stereotyping evidence

Hastings Law Journal

Volumn 59, Issue 6, 2008, Pages 1285-1309

  Albiston, Catherine ^a   Dickson, Kathryn Burkett ^a   Fishman, Charlotte ^a   Levy, Leslie F ^a  

^a University of California Berkeley's Boalt Hall School of Law ^*

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EID: 54149118188     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (120)

1. Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, 2 EEOC Compl. Man. (BNA) § 615 (May 23, 2007), available at http://www.eeoc.gov/ policy/docs/caregiving.pdf [hereinafter EEOC Guidance].
2. Joan C. Williams & Stephanie Bornstein, The Evolution of "Fred": Family Responsibilities Discrimination and Developments in the Role of Stereotyping and Implicit Bias Evidence, 59 HASTINGS L.J. 1311 (2008).
3. 42 U.S.C. § 2000e (2008).
4. Williams & Bornstein, supra note 2, at 1344-45.
5. Id. at 1345 (footnotes omitted).
6. 29 U.S.C. §§ 2601-2654, 5 U.S.C. §§ 6381-6385 (2006).
7. Williams & Bornstein, supra note 2, at 1345.
8. 42 U.S.C. § 12112(b)(4) (2006).
9. Employment Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829 (1974) (codified in scattered sections of 26, 29 U.S.C.).
10. Williams & Bornstein, supra note 2, at 1345-46 (footnotes omitted).
11. See id. at 1346.
12. See EEOC Guidance, supra note 1, at 1-32. See generally Williams & Bornstein, supra note 2.
13. Williams & Bornstein, supra note 2, at 1344 (stating that the Center for WorkLife Law has identified seventeen legal theories for pursuing FRD claims).
14. 173 F.3d 1039 (7th Cir. 1999).
15. Id. at 1042-43.
16. See BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 57 (4th ed. 2007) (stating that "a finding for the plaintiff is permitted where the fact finder, considering all of the evidence in the record, could reasonably infer that unlawful discrimination occurred").
17. See Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law, 94 CAL. L. REV. 997, 1059-60 (2006).
18. Id.
19. 42 U.S.C. § 2000e-2(a)(1) (2006).
20. 42 U.S.C. § 2000e(k) (2006).
21. See EEOC Guidance, supra note 1, at 1.
22. See Williams & Bornstein, supra note 2, at 1351 n.268.
23. Id. at 1344-47.
24. See, e.g., LINDEMANN & GROSSMAN, supra note 16, at 509-10 (discussing how courts have viewed distinctions based on marital status or leave of absence that are applied equally to men and women as gender discrimination under Title VII only where they result in a disparate impact on one gender).
25. See Williams & Bornstein, supra note 2, at 1350.
26. Id. at 1354 & n.291; see also EEOC Guidance, supra note 1, at 8-21.
27. See EEOC Guidance, supra note 1, at 17 (stating, in a discussion of "benevolent stereotyping," that "adverse actions that are based on sex stereotyping violate Title VII, even if the employer is not acting out of hostility," and citing UAW v. Johnson Controls, 499 U.S. 187, 199-200 (1991)); see also Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).
28. See generally Stephen Benard, In Paik & Shelley J. Correll, Cognitive Bias and the Motherhood Penalty, 59 HASTINGS L.J. 1359, (2008) [hereinafter Benard et al.];
29. Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J. SOC. 1297, 1317-23 (2007) [hereinafter Correll et al.].
30. 42 U.S.C. § 12112(b)(4) (2006) (prohibiting employment discrimination "because of a known disability of an individual with whom the qualified individual is known to have a relationship or association").
31. See Williams & Bornstein, supra note 2, at 1347 nn.244-45. See generally JOAN C. WILLIAMS, CENTER FOR WORKLIFE LAW, ONE SICK CHILD AWAY FROM BEING FIRED: WHEN "OPTING OUT" IS NOT AN OPTION (2006), available at http://www.worklifelaw.org/pubs/onesickchild.pdf (describing numerous arbitrations involving workers who needed leave or intermittent time off).
32. See, e.g., EEOC Guidance, supra note 1, at 28 (stating that "[w]omen of color also may be subject to intersectional discrimination that is specifically directed toward women of a particular race or ethnicity, resulting, for example, in less favorable treatment of an African American working mother than her White counterpart") (citing Race & Color Discrimination, 2 EEOC Comp. Man. (BNA) §15-IV-C (2006), available at http://www.eeoc.gov/policy/docs/race-color.html#IVC).
33. See, e.g., Washington v. Ill. Dept. of Rev., 420 F.3d 658, 662 (7th Cir. 2005).
34. See Williams & Bornstein, supra note 2, at 1348.
35. EEOC Guidance, supra note 1, at 28-30.
36. See, e.g., Bright v. Standard Register Co., 66 F.3d 171, 172-73 (8th Cir. 1995); Horn v. Cushman & Wakefield, 85 Cal. Rptr. 2d 459, 467 (Cal. Ct. App. 1999).
37. See Laina Rose Reinsmith, Proving an Employer's Intent: Disparate Treatment Discrimination and the Stray Remarks Doctrine After Reeves v. Sanderson Plumbing Products, 55 VAND. L. REV. 219 (2002).
38. See, e.g., Krieger & Fiske, supra note 17, at 1005-06.
39. 438 F.3d 763 (7th Cir. 2006).
40. Id. at 770-71 (citations omitted).
41. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1183-85, 1188, 1190, 1199-1200 (1995) (schemas); see, e.g., Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (stray remarks can reveal workplace culture); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (same).
42. 546 U.S. 454 (2006) (per curium).
43. Id. at 455-58.
44. Id. at 456.
45. 175 P.3d 1170 (Cal. 2008).
46. Reid v. Google, Inc., 66 Cal. Rptr. 3d 744, 759 (Cal. Ct. App. 2007).
47. Id. at 758-59.
48. Id. at 748.
49. Id.
50. Id. at 759.
51. Id.
52. Id. (citations omitted).
53. 128 S. Ct. 1140 (2008).
54. Id. at 1147.
55. Id.
56. See News Release, Judicial Council of California, Summary of Cases Accepted During the Week of January 28, 2008, available at http://www.courtinfo.ca.gov/courts/supreme/summaries/ WS012808.PDF.
57. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006).
58. Social science is also useful in overcoming the so-called "honest belief rule" that exists in certain jurisdictions. Under this rule, as Faigman, Dasgupta, and Ridgeway describe it in their article in this Issue, "if an employer honestly believed that the motivating factor for the negative employment decision was nondiscriminatory, he or she would not be liable under the law." David L. Faigman, Nilanjana Dasgupta & Cecilia L. Ridgeway, A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 HASTINGS L.J. 1389, 1395 (2008) [hereinafter Faigman et al.]. Practitioners faced with the "honest belief rule" should be aware that there are many ways to use social science to discount and overcome it. See id. at 1396-1402 (for a discussion); see also Krieger & Fiske, supra note 17, at 1034-38.
59. See, e.g., Phillips v. Martin Marietta, 400 U.S. 542, 547 n.3 (1971); EEOC Guidance, supra note 1, at 14; see also Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003).
60. See Benard et al., supra note 28, at 1368-77.
61. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55-56 (1st Cir. 2000) (holding that comments that the plaintiff might not be able to balance work and family responsibilities after she had a second child was sufficient for the jury to find that she was fired because of her gender); Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 381 (1st Cir. 1998); EEOC Guidance, supra note 1, at 11 ("Title VII does not permit employers to treat female workers less favorably merely on the gender-based assumption that a particular female worker will assume caretaking responsibilities or that a female worker's caretaking responsibilities will interfere with her work performance.").
62. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 120-21 (2d Cir. 2004) (holding that the view that a woman cannot be a good mother and have a job that requires long hours reflects gender stereotypes); Bailey v. Scott-Gallaher, Inc., 480 S.E.2d 502, 503 (Va. 1997) (employer terminated new mother on the theory that her place was at home with her child); EEOC Guidance, supra note 1, at 14.
63. Back, 365 F.3d at 120; EEOC Guidance, supra note 1, at 14.
64. EEOC Guidance, supra note 1, at 14.
65. See Williams & Bornstein, supra note 2, at 1344.
66. Phillips v. Martin Marietta Corp., 400 U.S. 542, 542 (1971); see also Back, 365 F.3d at 118; Barbano v. Madison County, 922 F.2d 139, 141 (2d Cir. 1990).
67. Price Waterhouse v. Hopkins, 490 U.S. 228, 294 (1989); Back, 365 F.3d at 119; EEOC Guidance, supra note 1, at 11-18.
68. Back, 365 F.3d at 121; EEOC Guidance, supra note 1, at 8 ("[W]hile comparative evidence is often useful, it is not necessary to establish a violation.").
69. 29 U.S.C. § 2615(a) (2006); 29 C.F.R. § 825.220(c) (2008) ("An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave.").
70. 29 C.F.R. § 825.220(c) (2008).
71. See Benard et al., supra note 28, at 1372; Correll et al., supra note 28, at 1317-23; Amy J.C. Cuddy et al., When Professionals Become Mothers, Warmth Doesn't Cut the Ice, 60 J. SOC. ISSUES 701, 709-11 (2004).
72. Correll et al., supra note 28, at 1320; Kathleen Fuegen et al., Mothers and Fathers in the Workplace: How Gender and Parental Status Influence Judgments of Job-Related Competence, 60 J. SOC. ISSUES 737, 748 (2004).
73. Correll et al., supra note 28, at 1330; see also Catherine Albiston, Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights, 39 LAW & SOC'Y REV. 11, 30 (2005).
74. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 120 (2d Cir. 2004); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 256 (1989).
75. 490 U.S. at 250.
76. Linda Hamilton Krieger, The Intuitive Psychologist Behind the Bench: Models of Gender Bias in Social Psychology and Employment Discrimination Law, 60 J. SOC. ISSUES 835, 839 (2004); Krieger & Fiske, supra note 17, at 1010.
77. Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. REV. 1241, 1247-54 (2001).
78. Anthony Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CAL. L. REV. 945, 948-62 (2006).
79. See Joan C. Williams & Consuela A. Pinto, Family Responsibilities Discrimination: Don't Get Caught Off Guard, 22 LAB. LAW. 293, 296 (2007);
80. Joan C. Williams, The Social Psychology of Stereotyping: Using Social Science to Litigate Gender Discrimination Cases and Defang the "Cluelessness" Defense, 7 EMP. RTS. & EMP. POL'Y J. 401, 426-30 (2003).
81. See, e.g., Marilynn B. Brewer, In-Group Favoritism: The Subtle Side of Intergroup Discrimination, in CODES OF CONDUCT: BEHAVIORAL RESEARCH INTO BUSINESS ETHICS 58 (David M. Messick & Ann E. Tenbrunsel eds., 1996);
82. Janet K. Swim & Lawrence J. Sana, He's Skilled, She's Lucky: A Meta-Analysis of Observers' Attributions for Women's and Men's Successes and Failures, 22 PERS'LTY & SOC. PSYCHOL. BULL. 507 (1996).
83. Williams & Pinto, supra note 78, at 417.
84. CATALYST, WOMEN "TAKE CARE," MEN "TAKE CHARGE:" STEREOTYPING OF U.S. BUSINESS LEADERS EXPOSED 6 (2005), http://www.catalystwomen.org/files/full/ Women%20Take%20Care% 20Men%20Take%20Charge.pdf.
85. See Williams & Bornstein, supra note 2, at 1320-21.
86. Albiston, supra note 72, at 31-33; Martin H. Malin, Fathers and Parental Leave, 72 TEX. L. REV. 1047, 1077-78 (1994).
87. See generally Joseph H. Pleck, Are "Family- Supportive" Employer Policies Relevant to Men?, in MEN, WORK, AND FAMILY 217 (Jane C. Hood ed., 1993).
88. In one experimental study, subjects rated men who took family leave as less likely to help their coworkers, be punctual, work overtime, or have good attendance than men who did not take family leave, or women regardless of leave-taking behavior. Julie Holliday Wayne & Bryanne L. Cordeiro, Who Is a Good Organizational Citizen? Social Perception of Male and Female Employees Who Use Family Leave, 49 SEX ROLES 233, 242 (2003).
89. Another experimental study found that men who took leaves of absence for parental reasons were less likely to be recommended for rewards than were men who had not taken leave. Tammy D. Allen & Joyce E.A. Russell, Parental Leave of Absence: Some Not So Family-Friendly Implications, 29 J. APPLIED SOC. PSYCH. 166, 185 (1999).
90. See, e.g., Knussman v. Maryland, 272 F.3d 625, 629-30, 635-37 (4th Cir. 2001) (finding that a supervisor's statements that "God made women to have babies and unless [plaintiff] could have a baby, there is no way that [plaintiff] could be primary care [giver]" and that plaintiff's wife had to be "in a coma or dead" for plaintiff to be considered the primary care giver violated federal law); Mora v. Chem-tronics, Inc., 16 F. Supp. 2d 1192, 1206 (S.D. Cal. 1998) (rejecting the employer's argument that the plaintiff was not needed to care for his dying son because his son's step-mother was a stay-at-home mom).
91. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 294 (1989).
92. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) ("These mutually reinforcing stereotypes create a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees.").
93. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004); see also Hibbs, 538 U.S. at 731 n.5 (discussing how men are disadvantaged by stereotypes that caring for family members is women's work).
94. 29 U.S.C. § 2615(a)(1) (2006).
95. 29 C.F.R. § 825.220(b) (2008).
96. Mora v. Chem-tronics, Inc., 16 F. Supp. 2d 1192, 1206 (S.D. Cal. 1998) (noting that any other interpretation would mean a father would not be entitled to be with his dying child if that child's mother was also present). The regulations define "needed to care for" to include providing psychological comfort and reassurance that would be beneficial to a seriously ill child. 29 C.F.R. § 825.116(3) (2008).
97. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) ("In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that 'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'"); Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989) ("It is difficult for us to imagine that, in the simple words 'because of,' Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision.").
98. Krieger & Fiske, supra note 17, at 1061-62.
99. See Faigman et al., supra note 57, at 1404-07.
100. Id. at 1404-06.
101. For further discussion of the "same actor inference" and the social science research that contravenes the inference, see Krieger & Fiske, supra note 17, at 1044-52.
102. Faigman et al., supra note 57, at 1431; see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 582-83 (1993).
103. See Faigman et al., supra note 57, at 1431-32.
104. 115 Cal. App. 4th 283, 294 (Cal. Ct. App. 2004).
105. Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97 AM. J. SOC. 1531, 1543-44 (1992).
106. Id. at 1544.
107. Id. at 1545-46.
108. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (holding that an employer may raise the promulgation of an anti-harassment policy with a complaint procedure as part of an affirmative defense); Faragher v. Boca Raton, 524 U.S. 775, 807-08 (1998) (same, but also indicating a failure to disseminate the policy is fatal to the defense); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986) (suggesting in dicta that the existence of a grievance procedure would be relevant to an employer's liability for sexual harassment).
109. Employers are required by law to keep records of every FMLA leave taken by an FMLA eligible employee, as well as copies of the leave policies provided to employees. 29 U.S.C. § 2616(b) (2006); 29 C.F.R. § 825.500(c) (2008). Employers are also required to post information about FMLA leave and to provide specific written information about employees' rights and obligations under the statute. 29 C.F.R. §§ 825.300(a), 825.301 (2008).
110. Some empirical research suggests that managers frame conflict over antidiscrimination provisions as managerial concerns, downplaying the importance of potential legal claims. Albiston, supra note 72, at 38-40; Lauren B. Edelman at al., Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace, 27 LAW & SOC'Y REV. 497, 511 (1993).
111. See, e.g., Michael Selmi, The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and Its Effects, 81 TEXAS L. REV. 1249 (2003).
112. Tristin K. Green & Alexandra Kalev, Discrimination-Reducing Measures at the Relational Level, 59 HASTINGS L.J. 1435, 1436 (2008).
113. Alexandra Kalev et al., Best Practices or Best Guesses?: Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies, 71 AM. SOC. REV. 589, 589 (2006).
114. Green & Kalev, supra note 107, at 1439; Kalev et al., supra note 108, at 593-94.
115. Green & Kalev, supra note 107, at 1440; Kalev et al., supra note 108, at 591-93.
116. Green & Kalev, supra note 107, at 1440-41; Kalev et al., supra note 108, at 594-95.
117. See, e.g., Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132 (4th Cir. 1995); Rau v. Apple-Rio Mgt. Co., 85 F. Supp. 2d 1344, 1352 (N.D. Ga. 1999).
118. Art Lambert, Sexual Harassment Claims: Insurers Help Clients Take Steps to Reduce Sexual Harassment, HOUSTON BUS. J., Mar. 19, 2004, available at http://www.bizjournals.com/houston/ stories/2004/03/22/focus4.html.
119. See Linda Bray Chanow, The Business Case for Reduced Hours, PROJECT FOR ATTORNEY RETENTION, http://www.pardc. org/Publications/business_case.shtml (last visited June 1, 2008) (citations omitted) (costs include interviewing time spent by partners and associates at the firm, hiring bonuses, lost training costs for the departed attorney and additional costs of training the new hire).
120. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, SOLVING THE PART-TIME PUZZLE: THE LAW FIRM'S GUIDE TO BALANCED HOURS 151-56 (2004).