The evolution of "FReD": Family responsibilities discrimination and developments in the law of stereotyping and implicit bias

Hastings Law Journal

Volumn 59, Issue 6, 2008, Pages 1311-1358

  Williams, Joan C ^a   Bornstein, Stephanie ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 54349099957     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (391)

1. Sheehan v. Donlen Corp., 173 F.3d 1039, 1042 (7th Cir. 1999).
2. Id.
3. Id.
4. Id. at 1043.
5. Plaintiffs Response to Defendant's Motions in Limine at 3-4, Schultz v. Advocate Health & Hosps. Corp., No. 01 C 0702 (N.D. Ill. May 31, 2002), 2002 WL 32603929, at *1 [hereinafter Plaintiff's Response]; Matt O'Connor, Ex-Hospital Worker Awarded Millions, CHI. TRIB., Oct. 31, 2002, Trib West, at 1.
6. Plaintiff's Memorandum in Opposition to Defendant's Motion for Partial Summary Judgment at 4, Schultz v. Advocate Health & Hosps. Corp., No. 01 C 0702, 2002 WL 1263983 (N.D. Ill. June 5, 2002).
7. Id. at 6-7.
8. Plaintiff's Response, supra note 5, at 3-5; see also Dee McAree, Family Leave Suit Draws Record $11.65M Award: Chicago Verdict May Be Sign of Emerging Trend, NAT'L L.J., Nov. 11, 2002, at A4, available at http://www.law.com/jsp/article.jsp?id=1036630387895; O'Connor, supra note 5.
9. Brief of Apellee/Cross-Appellant at 4-5, Gallina v. Mintz, 123 Fed. App'x 558 (4th Cir. 2005) (Nos. 03-1883, 03-1947).
10. Gallina v. Mintz, 123 Fed. App'x 558, 560 (4th Cir. 2005).
11. Id.
12. Id.
13. Id. at 561.
14. Id.
15. Knussman v. Maryland, 272 F.3d 625, 628 (4th Cir. 2001).
16. Id. at 628-29.
17. Id.
18. Id. at 629-30.
19. Gallina, 123 Fed. App'x at 562 (upholding plaintiff's award for $190,000 in compensatory damages and $330,000 in back pay); Knussman, 272 F.3d at 642 (showing jury initially awarded plaintiff $375,000, but on appeal the case was remanded for a new trial on damages); Sheehan v. Donlen Corp., 173 F.3d 1039, 1048-49 (7th Cir. 1999) (upholding plaintiff's award of $72,563 in attorney's fees and $30,000 in damages); McAree, supra note 8 (announcing that plaintiff was awarded $11.65 million in total damages).
20. See JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, Introduction to WORKLIFE LAW'S GUIDE TO FAMILY RESPONSIBILITIES DISCRIMINATION (2006).
21. Id.
22. See supra notes 5-8, 15-18 and accompanying text; cf. WILLIAMS & CALVERT, supra note 20, at 1-1 (describing typical cases of FRD under Title VII involving mothers of young children).
23. See Kirstin Downey Grimsley, Family a Priority for Young Workers; Survey Finds Change in Men's Thinking, WASH. POST, May 3, 2000, at E1 (reporting on a survey by Harris Interactive and the Radcliffe Public Policy Center);
24. see, e.g., Blanca Torres, A Difficult Balancing Act; Post-Baby Boom Dads Are Trying to Better Reconcile the Competing Demands Posed by Careers and Families, BALTIMORE SUN, Apr. 6, 2005, at 1K;
25. Patricia Wen, Gen X Dad, BOSTON GLOBE MAG., Jan. 16, 2005, at 20.
26. See JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 101-10 (2000);
27. see also Joan C. Williams & Nancy Segal, Beyond the Maternal Wall, 26 HARV. WOMEN'S L.J. 77 (2003) (discussing, for the first time, cases that litigated caregiver discrimination).
28. See, e.g., Monique Gougisha & Amanda Stout, We Are Family, HR MAGAZINE, Apr. 2007, at 117:
29. Amy Joyce, Looking Out for the Caregivers: New Guidelines Widen the Scope of Anti-Discrimination Protection, WASH. POST, May 27, 2007, at F3;
30. Pamela Kruger, The Career Challenge Moms Need to Face, CHILD, Oct. 2004, at 64;
31. Eyal Press, Family-Leave Values, N.Y. TIMES MAG., July 29, 2007, at 37;
32. Sarah Richards, Stew - or Sue?, O, OPRAH MAG., May 2006, at 279;
33. Gary M. Stern, Managing for Success: Opt-Out Generation Turns Back to Work; Firms Help Women Re-Enter Jobs After Raising Kids, INVESTOR'S BUS. DAILY, Jan. 26, 2007, at A07.
34. See, e.g., Gloria Gonzalez, Benefits Management: Family Care Bias Suits Rise as Workers Assert Rights, BUS. INS., June 19, 2006, at 11; Gougisha & Stout, supra note 25; Stern, supra note 25.
35. Lisa Belkin, Family Needs in the Legal Balance, N.Y. TIMES, July 30, 2006, § 10, at 1, available at http://www.nytimes.com/2006/07/30/jobs/30wcol.html?scp=i&sq=FRED&st=nyt (saying, of FRD, "You can call it Fred").
36. Press, supra note 25.
37. See, e.g., Fighting Maternal Discrimination: More Women Are Taking Their Employers to Court - and Winning, (CBS television broadcast Nov. 13, 2002), available at http://www.cbsnews.com/stories/2002/11/13/ eveningnews/main529258.shtml;
38. Betsy Stark, Picking on Moms in the Workplace, (ABC television broadcast July 6, 2006), available at http://www.abcnews.go.com/WNT/ story?id=2157490&page=i;
39. Joel Rose, All Things Considered: Pennsylvania Moms Fight Hiring Bias, (NPR radio broadcast Nov. 21, 2006), available at http://www.npr.org/templates/story/story.php?storyId=6520840;
40. Posting of Joan Blades to The Huffington Post, Peaceful Revolution: Maternal Profiling: A New York Times Buzzword, http://www.huffingtonpost.com/ joan-blades/peaceful-revolution_b_78794.html (Jan. 1, 2008, 16:36 EST);
41. Posting of E.J. Graff to TPM Café, Working Mothers: Who's Opting Out?, http://tpmcafe.talkingpointsmemo.com/2007/11/26/ working_mothers_whos_opting_ou/ (Nov. 26, 2007, 12:56 EST);
42. Posting of Paul Secunda to Workplace Prof Blog, EEOC Discusses FRD, http://lawprofessors.typepad.com/laborprof_blog/2007/04/eeoc_discusses_.html (Apr. 19, 2007);
43. Posting of Sarah Elizabeth Richards to Salo.com Broadsheet, Mother's Day Reality Check for Working Moms, http://www.salon.com/mwt/broadsheet/2006/05/15/ working_moms/index.htm (May 15, 2006, 19:29 EST).
44. See, e.g., Audio Recording: Understanding Family Responsibilities Discrimination - What Everyone Needs to Know, held by ALI-ABA (Apr. 11, 2007), available at http://www.ali-aba.org/index.cfm?fuseaction=online. course_products&containerid=38770;
45. Ass'n of Corporate Counsel, Del. Valley Chapter, Employment Law Institute: The Growing Role of the Family in Employment Law: Family Responsibilities Discrimination, New State Definitions of Family, and the Maturing of the Family and Medical Leave Act (event held May 15, 2007), http://www.acc.com/php/chapters/index.php?page=183&cal_mode= event&event_id=2134 (last visited June 1, 2008);
46. Audio Recording: Teleconference on Emerging Trends in Equal Employment Opportunity Law, held by Lorman Education Services (Jan. 25, 2008), available at http://www.lorman.com/teleconference/teleconference.php?sku= 378160&searchterms="family%20responsibilities%20discrimination" &results=2&subset=Bookstore;
47. Audio recording: Family Responsibilities Discrimination & Other Critical Issues Under the FMLA, from the 2007 Annual Convention, held by the National Employment Lawyers Association (June 27, 2007), available at https://www.nela.org/NELA/index.cfm?showfullpage=1&event=showAppPage&pg= semwebCatalog&panel=showSWOD&seminarid=942;
48. Gerald L. Pauling II, We Are Family - Understanding Family Responsibilities Discrimination Claims, presented at Defense Research Institute 2008 Employment Law Seminar (May 15, 2008), http://www.dri.org/DRI/ open/PastSem.aspx (click on 2008, then on Employment Law, open Employment Law Brochure.pdf, see page 6 of brochure).
49. 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.] (providing a review of much of the literature on the "maternal wall" at work);
50. Shelley J. Correll, Stephen Benard & In Paik, Getting a Job: Is There a Motherhood Penalty?, 112 AM. J. SOCIOL. 1297, 1316 (2007) [hereinafter Correll et al.];
51. The Maternal Wall: Research and Policy Perspectives on Discrimination Against Mothers, 60 J. SOC. ISSUES (SPECIAL ISSUE) 667 (Monica Biernat, Faye J. Crosby & Joan C. Williams, eds.) (2004) [hereinafter Biernat et al.].
52. See Deborah J. Swiss & Judith P. Walker, WOMEN AND THE WORK/FAMILY DILEMMA: How TODAY'S PROFESSIONAL WOMEN ARE CONFRONTING THE MATERNAL WALL 5-6 (1993) ("Again and again the stories shared by women across the country revealed a work culture dominated by 'Old Boys' who have imposed a glass ceiling to limit - solely because of gender - how high women can advance in their careers.... And, we discovered, the glass ceiling is firmly buttressed by a maternal wall - a transparent but very real barrier that significantly hinders a mother's ability to balance successfully work and family.").
53. See, e.g., ROBERT BELTON ET AL., EMPLOYMENT DISCRIMINATION 348-54 (7th ed. 2004) (discussing the FMLA and analyzing scholarship on FRD topics);
54. SAMUEL ESTREICHER & MICHAEL HARPER, CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION AND EMPLOYMENT LAW 323-33, 433-37 (2d ed. 2004) (discussing pregnancy discrimination, the FMLA, and FRD scholarship);
55. MARK A. ROTHSTEIN & LANCE LIEBMAN, EMPLOYMENT LAW 247-54 (6th ed. 2007) (including Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) and discussing FRD issues in notes).
56. But see MICHAEL J. ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 475-77 (6th ed. 2003 & Supp. 2005 at 156) (placing an unfortunate emphasis on Troupe v. Dep't Stores Co., 20 F.3d 734 (7th Cir. 1994), a fourteen year old case that does not comport with the current trend of FRD case law).
57. 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].
58. See generally EEOC Guidance, supra note 34.
59. See infra notes 281-83, 292-300 and accompanying text.
60. See, e.g., Shankar Vedantam, See No Bias, WASH. POST, Jan. 23, 2005, at W12 (detailing the scientific study of implicit biases and stereotypes).
61. See WILLIAMS, supra note 24.
62. See Mary Becker, Caring for Children and Caretakers, 76 CHI.-KENT L. REV. 1495, 1517 (2001) ("We need to face the fact that Title VII is an empty remedy apart from the most extreme cases. We need another way to resolve discrimination complaints; the federal courts are simply unwilling to do so. Today, Title VII plaintiffs routinely lose on motions for summary judgment....").
63. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1226-28 (1989).
64. See Kathryn Abrams, Book Review: Cross-Dressing in the Master's Clothes, 109 YALE L.J. 745, 759 (2000) (arguing that, by litigating discrimination against mothers under existing laws without more sweeping changes, "[t]he principles, and beneficiaries, of a capitalist economic regime are permitted to move ahead at full throttle")
65. WILLIAMS, supra note 24, at 4-5.
66. See Martha Chamallas, Mothers and Disparate Treatment: The Ghost of Martin Marietta, 44 VILL. L. REV. 337, 338-39 (1999).
67. See, e.g., Michael Selmi & Naomi R. Cahn, Women in the Workplace: Which Women, Which Agenda?, 13 DUKE J. GENDER L. & POL'Y 7, 7-8 (2006) ("[M]uch of the [work/family] literature has focused on a small segment of women[-]typically professional women.... The most frequently mentioned [policy] proposals-creating more and better part-time work, shorter work hours and greater workplace flexibility-are proposals that are of utility primarily to professional women, those, in other words, who can afford to trade less income for more family time.").
68. See, e.g., Debbie N. Kaminer, The Work-Family Conflict: Developing a Model of Parental Accommodation in the Workplace, 54 AM. U. L. REV. 305, 307-09 (2004);
69. Laura Kessler, The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, and the Limits of the Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 457-58 (2001);
70. Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 WIS. L. REV. 1443, 1445 (2001).
71. See generally Biernat et al., supra note 31.
72. See, e.g., Kirsten Davis, The Rhetoric of Accommodation: Considering the Language of Work-Family Discourse, 4 U. ST. THOMAS L. REV. 530, 530 (2007) (summarizing the previous literature advocating an accommodation approach to work/family conflicts and warning of the danger associated with using a legal term with a developed meaning in this area);
73. Beth Schleifer, Progressive Accommodation: Moving Towards Legislatively Approved Intermittent Parental Leave, 37 SETON HALL L. REV. 1127, 1130 (2007);
74. Naomi Schoenbaum, It's Time That You Know: The Shortcomings of Ignorance as Fairness in Employment Law and the Need for an "Information Shifting" Model, 30 HARV. J.L. & GENDER 99, 103 (2007).
75. See JANET C. GORNICK & MARCIA K. MEYERS, FAMILIES THAT WORK 58-67 (2003);
76. JERRY A. JACOBS & KATHLEEN GERSON, THE TIME DIVIDE: WORK, FAMILY, AND GENDER INEQUALITY 8, 126-27, 164-65 (2004) (discussing a time divide comprised of work/family, occupational, aspiration, parenting, and gender divides);
77. Press Release, ILO, New ILO Study Highlights Labour Trends Worldwide: US Productivity Up, Europe Improves Ability to Create Jobs (Sept. 1, 2003), available at http://www.ilo.org/global/About_the_ILO/ Media_and_public_information/Press_releases/lang-en/WCMS_005291/index.htm ("US workers put in an average of 1,825 hours in 2002 compared to major European economies, where hours worked ranged from around 1,300 to 1,800.... [However,] in South Korea,... people worked 2,447 hours in 2001, the longest hours worked for all economies for which data was available.").
78. GORNICK & MEYERS, supra note 48, at 112-46; JODY HEYMANN, THE WIDENING GAP: WHY AMERICA'S WORKING FAMILIES ARE IN JEOPARDY AND WHAT CAN BE DONE ABOUT IT 23-37 (2000).
79. The classic example of this framing is Lisa Belkin, The Opt-Out Revolution, N.Y. TIMES MAG., Oct. 26, 2003, at 42.
80. For a critique of this framing, see generally JOAN C. WILLIAMS ET AL., CENTER FOR WORKLIFE LAW, OPT OUT OR PUSHED OUT?: HOW THE PRESS COVERS WORK/FAMILY CONFLICT (2006), available at http://www.worklifelaw.org/pubs/ OptOutPushedOut.pdf;
81. PAM STONE, OPTING OUT? WHY WOMEN REALLY QUIT CAREERS AND HEAD HOME (2007).
82. For recent examples of how the choice rhetoric persists in the popular press, see Sheri J. Broyles, Creative Women in Advertising Agencies: Why So Few "Babes in Boyland?," 25 J. CONSUMER MKTG. 1 (2008);
83. Robyn Blumner, Stay at Home Moms Take Big Financial Risk, ST. PETERSBURG TIMES, May 13, 2007 (warning of the economic danger associated with "opting out," but still describing the trend as a woman's "choice" to stay home);
84. and Sarah Filus, Cashing In on Opting Out, 29 L.A. BUS. J. 19 (2007);
85. Amy Green, "Opt Out" or Not, Women in Charge of Own Decisions, ORLANDO SENTINEL, Jan. 24, 2007.
86. For a discussion of this misperception, see, for example, Selmi & Cahn, supra note 44, at 7-10, describing how the literature and media coverage on work/family issues has focused on professional women and led to policy proposals that leave out nonprofessional women, and Catherine Albiston, Anti-essentialism and the Work/Family Dilemma, 20 BERKELEY J. GENDER L. & JUST. 30, 31 (2005), describing how the "master narrative" in work/family conflicts has only focused on privileged women.
87. Carter v. Shop Rite Foods, Inc., 470 F. Supp. 1150, 1151 (N.D. Tex. 1979) (awarding $330,000 in damages against employer whose manager refused to hire women for managerial positions because of their child care responsibilities).
88. Nielsen v. New Cingular Wireless PCS, No. 05-320-JO, LLC, 12 Wage & Hour Cas. 2d (BNA) 831, (D. Or. Jan. 31, 2006) (denying summary judgment to employer where call center employee left work to care for pregnant wife).
89. EEOC v. JPI Partners, No. CIV 02-2643PHXDGC, CIV 03-0064PHXDGC, 2005 WL 2276726 (D. Ariz. Jan. 11, 2005) (Consent Decree) (pregnant manager criticized and set up for termination).
90. Plaetzer v. Borton Auto., Inc., No. Civ. 02-3089, 2004 WL 2066770 (D. Minn. Aug. 13, 2004) (denying employer's summary judgment motion where saleswoman's performance had been hyperscrutinized, and she was told that she should do the right thing and stay home with her children); Neis v. Fresnius USA, Inc., 219 F. Supp. 2d 799, 810 (E.D. Mich. 2004) (holding by jury in favor of women whose co-worker made such remarks as "women should be home raising babies" that employer did not address; court ordered new trial).
91. Flores-Suarez v. Turabo Med. Ctr. P'ship, 165 F. Supp. 2d 79, 90 (D.P.R. 2001) (holding for plaintiff in constructive discharge case where plaintiff was fired while on bed rest, reinstated, but isolated, denied time off for medical appointments, and had supervisor demand more of her than of her co-workers).
92. Lehmuller v. Sag Harbor, 944 F. Supp. 1087 (E.D.N.Y. 1996) (denying employer's summary judgment motion when employer granted light duty to males for off-the-job injuries but denied light duty for only female officer, who was pregnant); Tomaselli v. Upper Pottsgrove Twp., No. 04-2646, 2004 U.S. Dist. LEXIS 25754 (E.D. Pa. Dec. 23, 2004) (holding constructive discharge where plaintiff was harassed while pregnant and after her child was born).
93. Gorski v. N.H. Dept. of Corr., 290 F.3d 466 (1st Cir. 2002) (reversing dismissal of suit where mother's supervisor said "no one is going to want you because you are pregnant" and asked her "[w]hy did you get pregnant, with everything going on, why do you want another child?").
94. Bergene v. Salt River Project, 272 F.3d 1136 (9th Cir. 2001) (holding retaliatory motive where plaintiff was harassed, demoted, and threatened with additional retaliation if she held out for too much money in settling her PDA suit).
95. Abraham v. Graphic Arts Int'l, 660 F.2d 811 (D.C. Cir. 1981) (striking down employer contractual provision precluding leave in excess of ten days as applied to pregnant woman; disparate impact on women); Fisher v. Rizzo Bros. Painting Contractors, Inc., 403 F. Supp. 2d 593 (E.D. Ky. 2005) (administrative assistant laid off, and not rehired, following pregnancy); Templet v. Hard Rock Constr. Co., No. 02-0929, 2003 U.S. Dist. LEXIS 1023 (E.D. La. Jan. 27, 2003) (plaintiff demoted; supervisor told her it was because she was pregnant).
96. Van Diest v. Deloitte & Touche, No. 1:04 CV 2199, 2005 U.S. Dist. LEXIS 22106 (N.D. Ohio Sept. 30, 2005) (plaintiff laid off following leave to care for her sick mother); Hill v. Dale Electronics Corp., No. 03 Civ. 5907 (MBM), 2004 U.S. Dist. LEXIS 25522 (S.D.N.Y. Dec. 19, 2004) (when receptionist announced she was pregnant, complaints were trumped up and she was fired).
97. McGrenaghan v. St. Denis Sch., 979 F. Supp. 323 (E.D. Pa. 1997) (teacher involuntarily transferred from full-day teaching position to half-day teaching, half-day resource aid position following the birth of her disabled son).
98. Timothy v. Our Lady of Mercy Med. Ctr., No. 03 Civ. 3556 (RCC), 2004 WL 503760 (S.D.N.Y. Mar. 12, 2004) (holding retaliation against plaintiff, a star performer, who was subjected to a pattern of racial and sex discrimination after she returned from maternity leave, including losing her office and computer, having job duties taken away, and being excluded from meetings).
99. Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667 (S.D.N.Y. 1995) (law firm associate became pregnant and department chairman allegedly said: "With all these pregnant women around, I guess we should stop hiring women"; when she returned from maternity leave, the firm allegedly would not give her work, criticized her attitude, and terminated her); Halbrook v. Reichold Chemicals, Inc., 735 F. Supp. 121 (S.D.N.Y. 1990) (denying employer summary judgment where inhouse counsel forced to strike a bargain, where she would stop raising women's issues in return for which management would stop harassing her about her maternity leave), later proceeding, 766 F. Supp. 1290 (S.D.N.Y. 1991); Trezza v. The Hartford, Inc., No. 98 CIV. 2205 (MBM), 1998 WL 912101 (S.D.N.Y. Dec. 30, 1998) (woman with excellent performance evaluations not promoted after she had children).
100. Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011 (8th Cir. 2004) (executive vice-president's position was eliminated while she was on maternity leave and she was told not to apply for a new position); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) (holding pretextual reason given for firing plaintiff, the only top executive who was female, based on stereotyping).
101. Washington v. Illinois, 420 F.3d 658 (7th Cir. 2005) (woman who filed a race discrimination complaint was retaliated against by removing the flexible schedule she needed to take care of disabled son); Santiago-Ramos, 217 F.3d at 52 (Latina woman fired); Flores-Suarez v. Turabo Med. Ctr. P'ship, 165 F. Supp. 2d 79, 79 (D.P.R. 2001) (Latina woman forced to resign); Timothy, 2004 WL 503760 at *1 (woman of color allegedly demoted in favor of white women with children, and men with and without children).
102. Kathleen E. Christensen, Foreword to WORK, FAMILY, HEALTH, AND WELL-BEING, at ix (Suzanne Bianchi et al. eds., 2005).
103. Karen Kornbluh, The Parent Trap, ATLANTIC MONTHLY, Feb. 1, 2003, at 111.
104. See BARBARA SCHNEIDER & DAVID STEVENSON, THE AMBITIOUS GENERATION: AMERICA'S TEENAGERS, MOTIVATED BUT DIRECTIONLESS 145-48 (1999).
105. Harriet B. Presser, Toward a 24-Hour Economy, 284 SCI. 1778, 1778-79 (1999).
106. HEYMANN, supra note 49, at 2-5 (2000).
107. Press Release, Nat'l Ctr. for Health Statistics, U.S. Mortality Drops Sharply in 2006, Latest Data Show (June n, 2008), available at http://www.cdc.gov/nchs/PRESSROOM/08newsreleases/mortality2006.htm (noting that U.S. life expectancy reached a "new record high" in 2006).
108. See Knussman v. Maryland, 272 F.3d 625, 625 (4th Cir. 2001).
109. O'Connor, supra note 5.
110. To date, the Center for WorkLife Law has collected over 1,150 cases in a case database, over 150 of which were brought by male plaintiffs.
111. The largest class recovery the Center for WorkLife Law has collected to date is $49 million. See Bloomberg News, Verizon Paying $40 Million in Settlement of Sex Bias Case, SEATTLE POST-INTELLIGENCER, June 6, 2006, http://seattlepi.nwsource. com/business/272846_verizonbias06.html.
112. See Ctr. for WorkLife Law, Men and FRD, http://www.worklifelaw. org/MenFRD.html (last visited June 1, 2008).
113. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 228-35 (1989) (the initial U.S. Supreme Court case to articulate a sex stereotype theory); Ackerman v. Bd. of Educ., 387 F. Supp. 76 (S.D.N.Y. 1974) (male plaintiff asserting sex discrimination under Title VII); EEOC v. Commonwealth Edison, 1985 U.S. Dist. LEXIS 18361 (N.D. Ill. June 28, 1985) (same).
114. th Cir. 2001) (penalizing a man for behaving in a way not consistent with stereotypically masculine behavior is sex stereotyping); Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (same)).
115. See sources cited supra note 23.
116. See, e.g., Kaminer, supra note 45, at 305; Kessler, supra note 45 (agreeing that accommodation is necessary and looking to both the ADA and religious accommodation models as useful); Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 Wis. L. REV. 1443, 1445 (2001) (suggesting Title VII's religious accommodation statute as the best model to accommodate childrearing responsibilities and keep caregivers in the workplace).
117. See Kessler, supra note 45, at 457 ("In fact, Title VII's religious accommodation principle is perhaps even more suited than the ADA to answer the rhetoric of choice that increasingly has come to pervade our political discourse and judicial decisions.").
118. Kaminer, supra note 45, at 343 ("An employer should be required to provide a working parent with the 'alternative which least disadvantages the individual,' so long as doing so does not cause 'undue hardship' to the employer."); see, e.g., id. at 341-43, 345-46.
119. See MARY BLAIR-LOY, COMPETING DEVOTIONS: CAREER AND FAMILY AMONG WOMEN EXECUTIVES 1-2 (2003);
120. Mary Blair-Loy & Amy S. Wharton, Mothers in Finance: Surviving and Thriving, 596 ANNALS AM. ACAD. POL. & SOC. SCI. 151, 153 (2004).
121. See Blair-Loy & Wharton, supra note 84.
122. See supra notes 70-74 and accompanying text; infra notes 102-04 and accompanying text.
123. See, e.g., JENNIFER HOCHSCHILD, FACING UP TO THE AMERICAN DREAM: RACE, CLASS, AND THE SOUL OF THE NATION 55 (1995) ("Americans are close to unanimous in endorsing the idea of the American dream. Virtually all agree that all citizens should have political equality and that everyone in America warrants equal educational opportunities and equal opportunities in general.").
124. Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101-12213, 47 U.S.C. § 225 (2006).
125. See, e.g., Robert Burgdorf, "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409, 409-11 (1997);
126. Linda Hamilton Krieger, Backlash Against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies, 21 BERKELEY J. EMP. & LAB. L. 1, 1-5 (2000);
127. Wendy E. Parmet, Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability, 21 BERKELEY J. EMP. & LAB. L. 53, 53 (2000).
128. See, e.g., Burgdorf, supra note 89; Krieger, supra note 89, at 7 (describing how studies of cases published in 1998 and 1999 showed that "[t]he overwhelming majority of ADA employment discrimination plaintiffs were losing their cases, and the federal judiciary was interpreting the law in consistently narrowing ways"); Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with Disabilities Act, 68 U. COLO. L. REV. 107, 107-08 (1997);
129. Arlene Mayerson, Restoring Regard for the "Regarded As" Prong: Giving Effect to Congressional Intent, 42 VILL. L. REV. 587, 587 (1997).
130. See Krieger, supra note 89, at 7-9.
131. See Kelly Cahill Timmons, Limiting "Limitations": The Scope of the Duty of Reasonable Accommodation Under the Americans with Disabilities Act, 57 S.C. L. REV. 313, 314 (2005) ("A recent line of cases... restrict[s] the scope of the duty of reasonable accommodation.... If the requested accommodation is unrelated to the substantially limited major life activity that brought the employee within the ADA'S protected class, the employer is not required to provide it, even if the employee needs the accommodation because of another limitation caused by the disability").
132. See NICHOLAS W. TOWNSEND, THE PACKAGE DEAL: MARRIAGE, WORK, AND FATHERHOOD IN MEN'S LIVES 117-20 (2002) (regarding men);
133. see also Diane Kobrynowicz & Monica Biernat, Decoding Subjective Evaluations: How Stereotypes Provide Shifting Standards, 33 J. EXPMT'L SOC. PSYCHOL. 579, 587 (1997) (regarding what constitutes a "good" mother).
134. LYNNE M. CASPER & SUZANNE M. BIANCHI, CONTINUITY & CHANGE IN THE AMERICAN FAMILY 307 (2002) (citation omitted).
135. Id. at 298.
136. See Jamie Darin Prenkert & Julie Manning Magid, A Hobson's Choice Model for Religious Accommodation, 43 AM. BUS. L.J. 467, 509 (2006) ("[T]he accommodation claim only requires that the religious employee show that the rule or policy at issue adversely affects him or her personally. This is best understood as the result of the individualized nature of religious [belief, practice, or observance] under Title VII.").
137. See Krieger, supra note 89, at 3.
138. Id.
139. Kornbluh, supra note 68.
140. U.S. Dep't of Labor, Women's Bureau, Quick Facts on Women in the Labor Force in 2005, http://www.dol.gov/wb/factsheets/Qf-laborforce-05.htm (last visited June 1, 2008).
141. JANE LAWLER DYE, FERTILITY OF AMERICAN WOMEN: JUNE 2004, POPULATION CHARACTERISTICS 2 (U.S. Census Bureau, Dec. 2005), available at http://www.census.gov/prod/2005pubs/p20-555.pdf (stating that 19.3% of women aged 40 to 44 had no children).
142. See WILLIAMS, supra note 24, at 25-30.
143. See Kaminer, supra note 45, at 337 ("[T]he specific accommodation needs of working parents may differ as greatly from one another as the specific accommodation needs of adherents of different religious faiths. Parents of school-age children may want to go to work early so they can be home when their children return from school, while parents of infants and toddlers may prefer having their mornings at home and working during the afternoon. Children will get sick on different days and working parents will schedule appointments with teachers and principals on different days. The situations of both caregivers and religious employees are similar in that they both require flexibility in their work schedules. However, the specific accommodation needs of working parents may differ as greatly from one another as the specific needs of religious employees.").
144. According to U.S. Census Bureau Data, in 2006, 32% of single-parent families with children were below the poverty level, as compared to 7% of married-couple families with children. See Annie E. Casey Found., KIDS COUNT Data Center, Poverty, http://www.kidscount.org/datacenter/profile_results. jsp?r=1&d=1&c=1&p=5&x=o&y=o (last visited June 1, 2008);
145. see also JODY HEYMANN, FORGOTTEN FAMILIES: ENDING THE GROWING CRISIS CONFRONTING CHILDREN AND WORKING PARENTS IN THE GLOBAL ECONOMY 191-92 (2006) ("When families are headed by a single parent, they are more likely to be poor and without social supports and more often are forced to leave their children to manage on their own . . . . Nearly 78 percent of parents who were single with no other caregivers in the household had to leave children alone, compared to 30 percent of parents who had a spouse, partner, or other caregiver to help in the household.").
146. See 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; supra note 70 and accompanying text.
147. See, e.g., Keith Cunningham, Father Time: Flexible Work Arrangements and the Law Firm's Failure of the Family, 53 STANFORD L. REV. 967, 967-68 (2001);
148. Mary C. Noonan & Mary E. Corcoran, The Mommy Track and Partnership: Temporary Delay or Dead End?, 596 ANNALS AM. ACAD. POL. & SOC. SCI. 130, 147 (2004)
149. (citing Cynthia Fuchs Epstein et al., Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession, 64 FORDHAM L. REV. 306, 306-07 (1995);
150. Joyce Gannon, A Growing Number of Law Firms Let Attorneys Work Part-Time, PITTSBURGH POST-GAZETTE, Dec. 7, 2003).
151. See Noreen Farrell & Genevieve Guertin, Old Problem, New Tactic: Making the Case for Legislation to Combat Employment Discrimination Based on Family Caregiver Status, 59 HASTINGS L.J. 11463, 1478 (2008).
152. See generally Benard et al., supra note 31.
153. See, e.g., Biernat et al., supra note 31.
154. Correll et al., supra note 31; Stephen Benard & Shelley J. Correll, Address at the Hastings Law Journal and Center for WorkLife Law Symposium: Family Responsibilities Discrimination: Lessons for the Use of Stereotyping Evidence and Implicit Bias in Employment Cases (Feb. 8, 2008).
155. E-mail from Shelley J. Correll, Associate Professor of Sociology, Cornell University, to Stephanie Bornstein, Associate Director, Center for WorkLife Law (Apr. 2, 2008, 01:29 PST) (on file with authors).
156. Correll et al., supra note 31.
157. Id. at 1317.
158. See 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).
159. Note, as discussed in Part I.B.2.b, infra, that fathers are only advantaged when they perform little or no caregiving; when they take an active role in caregiving they are often penalized even more harshly than mothers.
160. See Susan T. Fiske et al., A Model of (Often Mixed) Stereotype Content: Competence and Warmth Respectively Follow from Perceived Status and Competition, 82 J. PERS'LTY & SOC. PSYCHOL. 878 (2002);
161. see also Thomas Eckes, Paternalistic and Envious Gender Stereotypes: Testing Predictions from the Stereotype Content Model, 47 SEX ROLES 99, 110 (2002);
162. Peter Glick & Susan T. Fiske, An Ambivalent Alliance: Hostile and Benevolent Sexism as Complementary Justifications for Gender Inequality, 56 AM. PSYCHOL. 109, 113 (2001).
163. Amy J.C. Cuddy et al., When Professionals Become Mothers, Warmth Doesn't Cut the Ice, 60 J. SOC. ISSUES 701, 712-13 (2004).
164. See id.
165. As Peter Glick and his colleagues have documented, while racial stereotypes tend to be uniformly negative ("all black men are felons"), reflecting what social psychologists call the "prejudice as antipathy" model formulated in the 1950s, stereotypes associated with motherhood sometimes have a positive valence. Peter Glick et al., Beyond Prejudice as Simply Antipathy: Hostile and Benevolent Sexism Across Cultures, 79 J. PERS'LTY & SOC. PSYCHOL. 763, 763 (2000)
166. (citing G.W. ALLPORT, THE NATURE OF PREJUDICE 9 (1954)).
167. See Diane Kobrynowicz & Monica Biernat, Decoding Subjective Evaluations: How Stereotypes Provide Shifting Standards, 33 J. EXPMT'L SOC. PSYCHOL. 579, 587 (1997).
168. See 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, 430-31 (2003).
169. See id.
170. See id. at 427-28.
171. See, e.g.. Lust v. Sealy, 383 F.3d 580, 583 (7th Cir. 2004) (employer denied a mother a promotion on the assumption that she would be unable to move her family to a new city despite her expressed willingness to do so for a promotion); Stern v. Cintas Corp., 319 F. Supp. 2d 841, 841-46 (N.D. Ill. 2004) (mother denied a sales position because her employer assumed she did not want to travel after having her baby, although she never suggested that was the case).
172. Rebecca Glauber, Marriage and the Motherhood Wage Penalty Among African Americans, Hispanics, and Whites, 69 J. MARRIAGE & FAM. 951, 955-58 (2007).
173. Id. at 955-56.
174. Id.
175. See, e.g., Ivy Kennelly, That Single Mother Element: How White Employers Typify Black Women, 13 GENDER & SOC'Y 168 (1999);
176. Amy J.C. Cuddy & Cynthia M. Frantz, Race, Work Status, and the Maternal Wall (unpublished paper presented at Gender Roles: Current Challenges, Symposium conducted at the 79th Annual Meeting of the Midwestern Psychological Association, Chicago, Ill. (May 2007)) (on file with authors).
177. See Letitia Anne Peplau & Adam Fingerhut, The Paradox of the Lesbian Worker, 60 J. SOC. ISSUES 719, 731-32 (2004).
178. Id.
179. Id.
180. See Jennifer Glass, Blessing or Curse? Work-Family Policies and Mother's Wage Growth over Time, 31 WORK & OCCUP'S 367, 389-90 (2004) (discussing the bias women face when they seek a part-time or flexible schedule);
181. Joan C. Williams, Hitting the Maternal Wall, 90 ACADEME 16, 18 (2004) (detailing that mothers face discrimination when they get pregnant and when they return from maternity leave).
182. See generally Glass, supra note 132.
183. See, e.g., CYNTHIA FUCHS EPSTEIN ET AL., THE PART-TIME PARADOX: TIME NORMS, PROFESSIONAL LIFE, FAMILY AND GENDER (1999);
184. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, PROJECT FOR ATTORNEY RETENTION, BALANCED HOURS: EFFECTIVE PART-TIME POLICIES FOR WASHINGTON LAW FIRMS (Final Report 2d ed. 2001), available at http://www.uchastings.edu/site_files/ WLL/BalancedHours2nd.pdf;
185. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, PROJECT FOR ATTORNEY RETENTION, BETTER ON BALANCE?: THE CORPORATE COUNSEL WORK/LIFE REPORT (Final Report 2003), available at http://www.uchastings.edu/site_files/WLL/ betteronbalance.pdf; Glass, supra note 132.
186. See Claire Etaugh & D. Folger, Perceptions of Parents Whose Work and Parenting Behaviors Deviate from Role Expectations, 39 SEX ROLES 215, 221 (1998) (mothers who reduce their hours viewed as less competent);
187. Claire Etaugh & B. Petroski, Perceptions of Women: Effects of Employment Status and Marital Status, 12 SEX ROLES 339, 339 (1985) (mothers who reduce their hours viewed as less committed);
188. see also Jane A. Halpert et al., Pregnancy as a Source of Bias in Performance Appraisals, 14 J. ORG. BEHAV. 649, 650 (1993). See generally EPSTEIN ET AL., supra note 134.
189. See Correll et al., supra note 31, at 1317; Fuegen et al., supra note 114.
190. See Correll et al., supra note 31, at 1307, 1313; Fuegen et al., supra note 114, at 742.
191. See sources cited supra note 137.
192. See TOWNSEND, supra note 93, at 197.
193. See Tammy D. Allen & Joyce E. Russell, Parental Leave of Absence: Some Not so Family-Friendly Implications, 29 J. APPLIED SOC. PSYCHOL. 166, 166 (1999);
194. Julie H. 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, 233-34 (2003);
195. see also Christine E. Dickson, The Impact of Family Supportive Policies and Practices on Perceived Family Discrimination 7 (2003) (unpublished dissertation, California School of Organizational Studies, Alliant International University) (on file with authors).
196. See Adam B. Butler & Amie Skattebo, What Is Acceptable for Women May Not Be for Men: The Effect of Family Conflicts with Work on Job Performance Ratings, 77 J. OCCUP. & ORG. PSYCHOL. 553. 553-59 (2004); Dickson, supra note 140.
197. Telephone Interviews with anonymous attorney by Linda Marks Director of Training & Consulting, Center for WorkLife Law, in S.F., Cal. (Feb. 15, 2006 & Oct. 24, 2006) (confidentiality promised).
198. Id.
199. Id.
200. See Rhonda Reaves, Retaliatory Harassment: Sex and the Hostile Coworker as the Enforcer of Workplace Norms, 2007 MICH. ST. L. REV. 403, 417 (2007) (more women entering nontraditional jobs);
201. Rachel Weiss, "It's-Not-Too-Late" Resolutions for Employers, 43 ARIZ. ATT'Y, Mar. 2007, at 33 available at http://www.myazbar.org/AZAttorney/PDF_Articles/0307Resolutions.pdf; ("Sexual harassment training has been shown to reduce the number of employee complaints, and it can significantly reduce an employer's financial exposure, as well").
202. But see Susan Bisom-Rapp, Fixing Watches with Sledgehammers: The Questionable Embrace of Employee Sexual Harassment Training by the Legal Profession, 24 U. ARK. LITTLE ROCK L. REV. 147, 147 (2001) (arguing that the increase in sexual harassment training has not reduced the incidence of sexual harassment in the workplace).
203. See MARY C. STILL, CTR. FOR WORKLIFE LAW, LITIGATING THE MATERNAL WALL: U.S. LAWSUITS CHARGING DISCRIMINATION AGAINST WORKERS WITH FAMILY RESPONSIBILITIES 13 & n.9 (2006), available at http://www.worklifelaw.org/pubs/FRDreport.pdf ("We interpret this rate with caution, since it is virtually impossible to know what the entire population of such cases looks like - we only know those identifiable through our search efforts. We define an employee 'win' as any case that is not ruled in favor of the employer. Thus, cases that are settled are defined as an employee victory if the employee receives any money. Cases in which employees defeat employer motions for summary judgment or motions to dismiss are included as victories if there are no further legal proceedings; we have either documented or presumed a settlement with some monetary recovery to the employee in such situations.").
204. See Kent D. Streseman, Headshrinkers, Manmunchers, Moneygrubbers, Nuts & Sluts: Reexamining Compelled Mental Examinations in Sexual Harassment Actions Under the Civil Rights Act of 1991, 80 CORNELL L. REV. 1268, 1281-82 ("Early attempts by sexual harassment victims to assert a cause of action under Title VII failed; deprived of statutory guidance as to what constitutes sex-based discrimination, federal courts initially held that sexual harassment was not discrimination based on gender. These courts instead characterized harassment as interpersonal conflicts stemming from characteristics peculiar to the individual involved.");
205. see also Francis Achampong, The Evolution of Same Sex Sexual Harassment Law: A Critical Examination of the Latest Developments in Workplace Sexual Harassment Litigation, 73 ST. JOHN'S L. REV. 701, 701-02 (1999);
206. Catherine MacKinnon, The Logic of Experience: Reflections on the Development of Sexual Harassment Law, 90 GEO. L.J. 813, 817-18 (2002).
207. See Streseman, supra note 147, at 1283 n.72 (explaining that the EEOC's 1980 Guidelines on Discrimination Because of Sex, which broadened the definition of sexual harassment that violates Title VII, "prompted a massive increase in Title VII sexual harassment litigation. In 1980, the EEOC reported that complainants filed 75 sexual harassment claims; in 1981, that figure jumped to 3,812"); see also N. James Turner, Employer Liability for Act of Sexual Harassment in the Workplace: Respondeat Superior and Beyond, 68 FLA. BAR J. 41, 41 (1994).
208. See Turner, supra note 148.
209. Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).
210. See Barry J. Baroni, Unwelcome Advances: Sexual Harassment in the Workplace, TRAINING & DEV., May 1992, at 19-20 (stating that employees who are taught about actionable conduct tend to avoid it);
211. Joanne Cole, Legal Sexual Harassment: New Rules, New Behavior, HR FOCUS, Mar. 1999, at 1, 14 (citing consultant Darlene Orlov, who says that her work involves "changing behavior");
212. Rebecca A. Thacker & Haidee Allerton, Preventing Sexual Harassment in the Workplace, TRAINING & DEV., Feb. 1992, at 50-51 (arguing that sexual harassment "training can be the first step toward eliminating the behavior").
213. See generally Frank Dobbin & Erin L. Kelly, How to Stop Harassment: Professional Construction of Legal Compliance in Organizations, 112 AM. J. SOC. 1203 (2007).
214. 519 F. Supp. 2d 811, 823 (N.D. Ill. 2007).
215. Id.
216. Id.
217. Id. at 825.
218. See, e.g., Paz v. Wauconda Healthcare and Rehab. Ctr., 464 F.3d 659, 662 (7th Cir. 2006) (supervisor allegedly suggested employee have an abortion); Does v. Dist. of Columbia, 448 F. Supp. 2d 137, 139 (D.D.C. 2005) (negative pregnancy test required for female firefighters to be hired and no pregnancies permitted in first year of employment; three women had abortions to keep their jobs); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 854-55 (8th Cir. 1998) (supervisor advised clerk to get an abortion and offered to pay for it and to drive her to the clinic; when she refused, supervisor made her do more lifting that she had when not pregnant).
219. 153 F.3d 851.
220. Id. at 854-55.
221. No. 04-CV-114A, 2007 WL 2245903 (W.D.N.Y. Aug. 1, 2007).
222. Id. at *4.
223. Id.
224. Id.
225. No. Civ.02-3089 JRT/JSM, 2004 WL 2066770, at *i (D. Minn. Aug. 13, 2004).
226. Ann Belser, Mommy Track Wins: $3 Million Awarded to Mom Denied Promotion, PITTSBURGH POST-GAZETTE, Apr. 30, 1999, at B1 (discussing case of Kathleen Hallberg against Aristech Chemical Corp).
227. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 115 (2d Cir. 2004).
228. 383 F.3d 580, 582-83 (7th Cir. 2004).
229. Id. at 583; see also Trezza v. The Hartford, Inc., No. 98 Civ. 2205 (MBM), 1998 WL 912101, at *1-2 (S.D.N.Y. Dec. 30, 1998) (woman who consistently received excellent job evaluations abruptly ceased to be promoted after she had children; told by supervisor "I don't see how you can do either job well.").
230. Lehman v. Kohl's Dep't Store, No. CV-06-581501 (Cuyahoga County, Ohio) (May 25, 2007); see also James F. McCarty, Woman Wins Suit Over Bias at Kohl's; Former Worker Says Pregnancies Prevented Promotion to Manager, CLEVELAND PLAIN DEALER, May 26, 2007, at A1.
231. See sources cited supra note 168.
232. See Michael Selmi, Sex Discrimination in the Nineties, Seventies Style: Case Studies in the Preservation of Male Workplace Norms, 9 EMP. RTS. & EMP. POL'Y J. 1, 1-3 (2005).
233. WILLIAMS, supra note 24.
234. See Becker, supra note 39.
235. See STILL, supra note 146, at 6.
236. Id. at 7.
237. Mary C. Still, Family Responsibilities Discrimination and the New Institutionalism: The Interactive Process Through Which Legal and Social Factors Produce Institutional Change, 59 HASTINGS L.J. 1491, 1513 (2008).
238. Id. at 1511; see also Lauren B. Edelman et al., Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace, 27 LAW & SOC'Y REV. 497, 500-02 (2003).
239. For an example of this phenomenon, see Krukowski & Costello, S.C., A Glass Ceiling for Parents?, WASH. D.C. EMP. L. LETTER, (2002), available at HRhero.com, http://www.hrhero.com/ pregnancy/parents.shtml.
240. For more on the impact of lawsuits on employer practices, see generally Still, supra note 175.
241. See, e.g., Krukowski & Costello, S.C., supra note 177.
242. See, e.g., Gonzalez, supra note 26; Gougisha & Stout, supra note 25.
243. See, e.g., Daniel J. Finerty, Family Responsibilities Discrimination: Making Room at Work for Family Demands, 80 WIS. LAW., NOV. 2007, available at http://www.wisbar.org/AM/ Template.cfm?Section=Wisconsin_Lawyer&template=/CM/ContentDisplay. cfm&contentid=6821 ("All signs indicate that the rise in FRD claims will continue. To properly advise their business clients, lawyers need to recognize potential claims and provide solutions if problems arise.").
244. Compare Family Responsibility Discrimination?, George's Employment Blawg, http://www.employmentblawg.com/2006/family-responsibilities- discrimination (Oct. 14, 2006) ("I guess my off-the-cuff response is that this 'new category of discrimination' is either good old-fashioned disparate treatment gender discrimination or it's perfectly lawful, provided it does not violate the FMLA. And the article is a media overreaction to a liberal academic's theorizing."),
245. with Authoritative Summary of Law on Family Responsibilities Discrimination, George's Employment Blawg, http://www.employmentblawg.com/2007/ authoritative-summary-of-law-on-family-responsibilities-discrimination (July 9, 2007) ("We've written before about the increased interest in what is being called 'Family Responsibilities Discrimination' . . . . Legally speaking, family responsibility discrimination does not involve a new form of prohibited discrimination in the workplace, but rather a set of scenarios that are increasingly leading to employment discrimination lawsuits and other legal claims.").
246. See Chamallas, supra note 43, at 338 ("[T]he ban on disparate treatment will not solve the work/family conflict for women who experience actual, rather than perceived, conflicts because they find that there are just not enough hours in the day."); see also Kaminer, supra note 45, at 307 ("Title VII, an antidiscrimination statute, is limited by its focus on formal equality, which essentially requires that employers treat similarly situated employees in a similar manner . . . .").
247. See, e.g., Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren, 429 U.S. 190 (1976); Frontiero v. Richardson, 411 U.S. 677 (1973).
248. See Mary Ann Case, "The Very Stereotype the Law Condemns": Constitutional Discrimination Law as a Quest for Perfect Proxies, 85 CORNELL L. REV. 1447, 1449 (2000) (quoting Schlesinger v. Bellard, 419 U.S. 498, 507 (1975)).
249. See Frontiero, 411 U.S at 680-81.
250. Deborah L. Rhode, Myths of Meritocracy, 65 FORDHAM L. REV. 585, 588 (1996)
251. (quoting HARVARD WOMEN'S LAW ASS'N, PRESUMED EQUAL: WHAT AMERICA'S TOP WOMEN LAWYER'S REALLY THINK ABOUT THEIR FIRMS 72 (1995)).
252. See, e.g., MARGARET L. ANDERSEN, THINKING ABOUT WOMEN: SOCIOLOGICAL PERSPECTIVES ON SEX AND GENDER 101-39 (1994);
253. DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 161 (1989);
254. Mary F. Radford, Sex Stereotyping and the Promotion of Women to Positions of Power, 41 HASTINGS L.J. 471 (1990);
255. Kenji Yoshino, Covering, 111 YALE L.J. 769, 905-24 (2002) ("To succeed as a woman, one must have the correctly titrated balance of masculine and feminine traits. One must be 'authoritative' and 'formidable,' but remain an 'appealing lady.'").
256. 490 U.S. 228 (1989).
257. Id. at 250.
258. This is the approach to FRD embedded by the EEOC in its Guidance on Caregiver Discrimination, discussed in Part II, infra.
259. Michelle Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH. & LEE L. REV. 3, 6 (2005) ("This bundle of related default organizational structures - referred to collectively as the 'full-time face-time norm' - frequently excludes individuals from the workplace, particularly individuals with disabilities and women with significant caregiving responsibilities.") .
260. See Otwell v. JHM, 2007 Mealey's Jury Verdicts & Settlements 1479 (N.D. Ala. 2007).
261. See Homburg v. UPS, Inc., No. 05-2144-KHV, 2006 WL 2092457 (D. Kan. July 27, 2006).
262. 420 F.3d 658 (7th Cir. 2005).
263. As discussed in Part II.B, infra, the standard in this case was later adopted by the U.S. Supreme Court in Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006), with implications for Title VII jurisprudence generally.
264. Washington, 420 F.3d at 662-63.
265. Id. at 659.
266. Id. at 659, 662.
267. See, e.g., Tomaselli v. Upper Pottsgrove Twp., No. 04-2646, 2004 U.S. Dist. LEXIS 25754 (E.D. Pa. Dec. 22, 2004) (holding that denial of reduced work schedule to a woman for pregnancy and childcare reasons while men were so granted for physical or personal needs is disparate treatment); Parker v. Dep't of Pub. Safety, 11 F. Supp. 2d 467 (D. Del. 1998) (holding that refusal to give a woman a fixed, rather than rotating, work schedule for childcare reasons while men are given fixed schedules for other reasons is disparate treatment).
268. See Lovell v. BBNT Solutions, LLC, 295 F. Supp. 2d 611, 615-16 (E.D. Va. 2003).
269. Id. at 615-16.
270. Id. at 630. Based on the evidence, the court did, however, reduce the amount of damages the jury awarded Lovell and ruled against her on a separate Title VII claim related to a pay raise. Id. at 627 n.18, 628.
271. Id. at 615-16.
272. See Chamallas, supra note 43 ("For those women whose domestic responsibilities make it impossible for them to meet the requirements of a given position, the formal equality promised by Title VII's prohibition of disparate treatment may be of little use. Disparate treatment claims, however, should guarantee that women who do manage successfully to combine work and family are not penalized simply because their employers believe that they cannot do it.").
273. See id. at 353 ("Rarely, however, do plaintiffs discover such 'smoking gun' evidence of disparate treatment. More often, there is little or no direct evidence of discrimination and no identically situated male employee whose treatment can be compared to the plaintiff's. In such cases, there is a danger that misguided and unduly restrictive judicial interpretations of what constitutes sex discrimination under Title VII, coupled with unrealistically high evidentiary burdens, will block recovery in disparate treatment litigation.").
274. See discussion infra Part II.D.1.
275. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006).
276. EEOC Guidance, supra note 34.
277. See supra note 39 and accompanying text.
278. See, e.g., sources cited supra note 45 and accompanying text.
279. 42 U.S.C. § 2000e(k) (2006); see, e.g., Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 342 (8th Cir. 1997) (refusing to recognize claim of discrimination based on plaintiff's status as a new parent under the PDA); Maganuco v. Leyden Cmty. High Sch. Dist. 212, 939 F.2d 440, 443-45 (7th Cir. 1991) (refusing to recognize claim seeking time off from work to nurture and parent new-born child, rather than to deal with a physical disability relating to pregnancy or childbirth under the PDA); Pearlstein v. Staten Island Univ. Hosp., 886 F. Supp. 260, 266 n.5 (E.D.N.Y. 1995) (holding leave to adopt child is unprotected by PDA); Record v. Mill Neck Manor Lutheran Sch. for the Deaf, 611 F. Supp. 905, 907 (E.D.N.Y. 1985) (holding childrearing leave not protected by PDA).
280. See 42 U.S.C. § 2000e(k) (2006) ("The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes); Piantanida, 116 F.3d at 342 ("We are . . . faced with the narrow question of whether being discriminated against because of one's status as a new parent is . . . violative of the PDA. In examining the terms of the PDA, we conclude that an individual's choice to care for a child is not a 'medical condition' related to childbirth or pregnancy.").
281. See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000); Fisher v. Vassar Coll., 70 F.3d 1420 (2d Cir. 1995) (accepting a "sex-plus" maternity claim); Harper v. Thiokol Chem. Corp., 619 F.2d 489 (5th Cir. 1980) (accepting a "sex-plus" pregnancy claim); Trezza v. The Hartford, Inc., No. 98 Civ. 2205 (MBM), 1998 U.S. Dist. LEXIS 20206 (S.D.N.Y. Dec. 30, 1998) (finding a prima facie case of discriminatory failure to promote based on a "sex-plus" maternity claim); Moore v. Ala. State Univ., 980 F. Supp. 426 (M.D. Ala. 1997); McGrenaghan v. St. Denis Sch., 979 F. Supp. 323 (E.D. Pa. 1997) (denying defendant's summary judgment motion to dismiss the "sex-plus" claim of a woman with a disabled child).
282. 400 U.S. 542, 542 (1971).
283. Id. at 543-44.
284. See discussion infra Part II.D.
285. See, e.g., Martinez v. NBC, 49 F. Supp. 2d 305, 305 (S.D.N.Y. 1999).
286. See, e.g., Philipsen v. Univ. of Mich. Bd. of Regents, No. 06-CV-11 976-DT, 2007 U.S. Dist. LEXIS 25898, at *29 (D. Mich. Mar. 22, 2007).
287. WILLIAMS, supra note 24, at 66. As a recent example, even in 2006, over 75% of teachers and hospital workers were still women, whereas over 90% of auto mechanics and construction workers were still men. U.S. DEP'T OF LABOR, BUREAU OF LABOR STATISTICS, Table 14. Employed Persons by Detailed Industry and Sex, 2006 Annual Averages, in CURRENT POPULATION SURVEY 39-44 tbl.14 (2007), available at http://www.bls.gov/cps/ wlf-table14-2007.pdf.
288. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118-19 (2d Cir. 2004).
289. See KATHARINE T. BARTLETT & DEBORAH L. RHODE, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY 94 (4th ed. 2006) (citing Back as an example of how most successful "sex-plus" suits are brought by mothers or potential mothers).
290. See, e.g., Lust v. Sealy, 383 F.3d 580 (7th Cir. 2004); Back, 365 F.3d at 107; Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999); Troy v. Bay State Computer Group, Inc., 141 F.3d 378 (1st Cir. 1998); Stern v. Cintas Corp., 319 F. Supp. 2d 841 (N.D. Ill. 2004); Plaetzer v. Borton Auto., Inc., No. C.V. 62-3089 JRT/JRM, 2004 WL 2066770 (D. Minn. Aug 13, 2004).
291. See generally WILLIAMS & CALVERT, supra note 20.
292. See, e.g., Lettieri v. Equant Inc., 478 F.3d 640 (4th Cir. 2007) (sales director denied promotion because of her child care and family responsibilities); Walsh v. Irvin Stern's Costumes, No. 05-2515, 2006 U.S. Dist. LEXIS 2120 (E.D. Pa. Jan. 19, 2006) (store manager fired two weeks after announcing her pregnancy); Stern v. Cintas Corp., 319 F. Supp. 2d 841 (N.D. Ill. 2004) (saleswoman demoted and terminated after becoming pregnant with second child based on assumption that she would not want to travel).
293. See, e.g., Lettieri, 478 F.3d at 640 (sales director who had been denied promotion because of her family responsibilities was subject to sexist comments, effectively demoted, and ultimately fired in retaliation for complaining of gender discrimination); Wash. v. Ill. Dep't. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (mother's established flexible work schedule of 7:00 a.m. to 3:00 p.m. revoked in retaliation for her complaint of race discrimination); EEOC v. Denver Newspaper Agency, LLP, No. 04-cv-01896-WDM-MEH, 2007 WL 485346 (D. Colo. Feb 12, 2007) (sales manager subject to sexist comments during pregnancy ultimately fired when six-months pregnant in retaliation for complaint of sex discrimination).
294. See, e.g., EEOC v. PVNF, L.L.C., 487 F.3d 790 (10th Cir. 2007) (car salesperson subject to hostile work environment toward pregnant women and women with children); Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150 (8th Cir. 2003) (new mother subject to hostile work environment upon returning from maternity leave); Sivieri v. Dep't of Transitional Assistance, 16 Mass. L. Rptr. 531 (Mass. Super. Ct. 2003) (same).
295. See, e.g., Martz v. Munroe Reg'l Med. Ctr., Inc., No. 5:06-cv-422-Oc-10GRJ, 2007 U.S. Dist. LEXIS 49561 (M.D. Fla. July 9, 2007) (nurse could allege constructive discharge when denied light duty during pregnancy despite medical lifting restriction); Timothy v. Our Lady of Mercy Med. Ctr., No. 03 Civ. 3556 (RCC), 2004 WL 5053760 (S.D.N.Y. Mar. 12, 2004) (hospital administrator who, after maternity leave, was demoted, stripped of responsibilities, assigned to inadequate work space, and retaliated against for complaining, could allege constructive discharge).
296. See, e.g., Garcia v. Woman's Hosp. of Tex., 97 F.3d 810 (5th Cir. 1996) (employer lifting requirement of 150 pounds could have disparate impact on pregnant women); Lochren v. County of Suffolk, No. CV 01-3925(ARL), 2008 WL 2039458 (E.D.N.Y. May 9, 2008) (police department policy allowing light duty only for on-the-job injuries had disparate impact on female police officers because of pregnancy); Roberts v. U.S. Postmaster General, 947 F. Supp. 282 (E.D. Tex. 1996) (employer policy that employees could not use sick days to care for sick children could have a disparate impact on women).
297. See, e.g., Orr. v. City of Albuquerque, 417 F.3d 1144 (10th Cir. 2005) (female police officers who were required to use sick time for parental leave while male police officers were permitted to use non-sick time for FMLA leave could constitute equal protection violation); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) (public school psychologist denied tenure based on assumptions about her commitment to work after becoming a mother can allege sex discrimination under EP Clause).
298. 29 U.S.C. § 206(d) (2006); see, e.g., Gallina v. Mintz, 123 F. App'x 558 (4th Cir. 2005) (attorney given negative performance review that affected pay raise after supervisor discovered she was a mother could allege Title VII and EPA violations); Lovell v. BBNT Solutions, L.L.C., 295 F. Supp. 2d 611 (E.D. Va. 2003) (female chemist who worked 75% time but received less than 75% equivalent pay could allege EPA violation).
299. 29 U.S.C. §§ 2601-2654, 5 U.S.C. §§ 6381-6385 (2006).
300. See, e.g., Liu v. Amway, 347 F.3d 1125 (9th Cir. 2003) (scientist on maternity leave pressured to reduce amount of leave, forced to take "personal leave," given negative performance evaluation, then terminated in a layoff as lowest performing employee); Rabe v. Nationwide Logistics, Inc., 530 F. Supp. 2d 1069 (E.D. Mich. 2008) (senior accountant terminated shortly after announcing he would need leave for birth of new baby; told not entitled to same leave rights as female counterparts); Lincoln v. Sears Home Improvement Prod., Inc., No. 02-840 (DWF/SRN), 2004 U.S. Dist. LEXIS 402 (D. Minn. Jan. 9, 2004) (employee on leave to care for mother after father's death not informed of his FMLA rights and fired while on leave despite providing employer with sufficient notice).
301. 42 U.S.C. § 12112(b)(4) (2006) (discrimination under the ADA includes "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association").
302. See, e.g., Francin v. Mosby, Inc., No. ED 89814, 2008 WL 65447 (E.D. Mo. Jan. 8, 2008) (employee fired after informing new supervisor of his wife's disability); Abdel-Khalek v. Ernst & Young, LLP, No. 97 CIV. 4514 JGK, 1999 WL 190790 (S.D.N.Y. Mar. 5, 1999, as amended Apr. 7, 1999) (mother with disabled daughter with serious health issues was only employee not hired when another company acquired her employer).
303. Employment Retirement Income Security Act (ERISA) of 1974, Pub. L No. 93-406, 88 Stat. 829 (1974) (codified in scattered sections of 26, 29 U.S.C).
304. See, e.g., Strate v. Midwest Bankcentre, Inc., 396 F.3d 1011 (8th Cir. 2004) (executive vice president who gave birth to child with Down syndrome had position eliminated while on maternity leave); Skaggs v. Subway Real Estate Corp., No. Civ.3:03 CV 1412 (EBB), 2006 WL 1042337 (D. Conn. Apr. 19, 2006) (leasing assistant with a high-risk pregnancy had probationary period extended and then was terminated); Nottmeyer v. Precision Alliance Group, LLC, No. 04 CV 0901 MJR, 2006 WL 516729 (S.D. Ill. Mar. 1, 2006) (father of disabled daughter with high health costs terminated).
305. See, e.g., Naeem v. McKesson Drug Co., 444 F.3d 593 (7th Cir. 2006) (judgment for plaintiff affirmed on intentional infliction of emotional distress claim where pregnant supervisor was constantly harassed, given extra work, and impeded from being able to complete work); Beebe v. Williams Coll., 430 F.3d 18 (D. Mass. 2006) (dismissing denial of breach of contract claim based on personnel manual when fired for absences to meet child's medical needs); Kelly v. Stamps.Com Inc., 135 Cal. App. 4th 1088 (Cal. App. 2006) (vice president of marketing fired when seven months pregnant despite consistently positive feedback on performance could bring wrongful discharge and breach of contract claims).
306. See e.g., Zimmerman v. Direct Federal Credit Union, 262 F.3d 70 (1st Cir. 2001) (upholding tortious interference verdict where star employee stripped of duties while pregnant and, upon return from leave, removed from management and shunned); Theroux v. Singer, 21 Mass. L. Rep. 187 (Mass. Super. Ct. 2006) (finding breach of implied covenant where dentist in partnership fired after becoming pregnant); McCormick v. Hi-Tech Plating, Inc., 10 Mass. L. Rptr. 229 (Mass. Super. Ct. 1999) (denial of summary judgment on promissory estoppel claim, where man with custody of his children was given a week off by his supervisor to make child care arrangements then fired before the week was over).
307. See ALASKA STAT. § 18.80.220 (2006) ("parenthood" D.C. Human Rights Act, D.C. CODE ANN. §§ 2-1401.01 to 2-1401.02 (2001 & Supp. 2007) ("family responsibilities"); STEPHANIE BORNSTEIN & ROBERT RATHMELL, CENTER FOR WORKL IFE LAW, STATE AND LOCAL LAWS EXPRESSLY PROHIBITING EMPLOYMENT DISCRIMINATION BASED ON FAMILY RESPONSIBILITIES, FAMILIAL STATUS, OR PARENTHOOD (forthcoming 2008), available when published at http://www.worklifelaw.org/FRD.html. In addition, Connecticut prohibits employers from requesting or requiring information relating to "familial responsibilities" from an applicant or employee, and Federal Executive Order 13152 prohibits employment discrimination against federal government employees on the basis of "status as a parent." CONN. GEN. STAT. § 46(a)-60(a)(9) (2004); Exec. Order No. 13152, 65 Fed. Reg. 26115 (May 2, 2000).
308. Other states to consider such legislation include Florida, Iowa, Michigan, New Jersey, New York, and Pennsylvania. In addition, Montana considered a bill to add "family responsibilities" as a basis for hostile work environment harassment. See Int. No. 565, 2007 City Council Act (N.Y.C. 2007) ("caregiver status"); S.B. 836, 2006-07 Reg. Sess. (Cal. 2007) ("familial status"); C.S./S.B. 572, 2007-08 Reg. Sess. (Fla. 2007); H.B. 191, 2007-08 Reg. Sess. (Fla. 2007) ("familial status"); Iowa H.F. 532, 82nd Gen. Assem., Reg. Sess. (Iowa 2007) ("marital or family status"); S.B. 462, 2007-08 Reg. Sess. (Mich. 2007) ("familial status"); A. 2292, 213th Leg., Reg. Sess. (N.J. 2008) ("familial status"); A. 3214, 2007-08 Gen. Assem., Reg. Sess. (N.Y. 2007) ("family responsibilities" to care for children); H.B. 280, 2007-08 Gen. Assem., Reg. Sess. (Pa. 2007) ("familial status"); S.B. 280, 2007-08 Gen. Assem., Reg. Sess. (Pa. 2007) ("familial status"); H.B. 213, 60th Leg., Reg. Sess. (Mont. 2007) ("family responsibilities" as basis for hostile work environment); see also Ctr. for WorkLife Law, Public Policy, Family Responsibilities Discrimination, http://www.worklifelaw.org/FRD.html (last visited June 1, 2008).
309. See, e.g., Lust v. Sealy, 383 F.3d 580, 583 (7th Cir. 2004); Trezza v. The Hartford, Inc., No. 98 Civ. 2205 (MBM), 1998 U.S. Dist. LEXIS 20206 (S.D.N.Y. Dec. 30, 1998); Lehman v. Kohl's Dep't Store, No. CV-06-581501 (Cuyahoga County, Ohio) (May 25, 2007).
310. See, e.g., Paz v. Wauconda Healthcare and Rehab. Ctr., 464 F.3d 659 (7th Cir. 2006) (abortion suggested to pregnant employee); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998) (same); Walsh v. Irvin Stern's Costumes, No. 05-2515, 2006 U.S. Dist. LEXIS 2120 (E.D. Pa. Jan. 19, 2006) (store manager fired two weeks after announcing her pregnancy); Doe v. Dep't of Fire and Emergency, 448 F. Supp. 2d 137 (D.D.C. 2005) (no pregnancies permitted in first year of employment; three employees had abortions to keep jobs); Templet v. Hard Rock Constr. Co., No. 02-0929, 2003 U.S. Dist. LEXIS 1023 (E.D. La. Jan. 27, 2003) (plaintiff demoted; supervisor told her it was because she was pregnant).
311. See, e.g., Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001).
312. See, e.g., Sallis v. Prime Acceptance Corp., No. 05 C 1525, 2005 U.S. Dist. LEXIS 16693 (N.D. Ill. Aug. 10, 2005); Lincoln v. Sears Home Improvement Prod., Inc., No. C 02-840, 2004 U.S. Dist. LEXIS 402 (D. Minn. Jan. 9, 2004); Schultz v. Advocates Health & Hospitals Corp., No. 01 C 702, 2002 U.S. Dist. LEXIS 9517 (N.D. Ill. May 24, 2002).
313. See, e.g., Strate v. Midwest Bankcentre, Inc., 398 F.3d ion (8th Cir. 2004); Fleming v. Ayers & Assocs., 948 F.2d 993 (6th Cir. 1991); Abdel-Khalek v. Ernst & Young, LLP, No. 97 Civ. 4514 (JGK), 1999 U.S. Dist. LEXIS 2369 (S.D.N.Y. Mar. 5, 1999, amended Apr. 7, 1999); LeCompte v. Freeport-McMoran, No. 94-2169 R, 1995 U.S. Dist. LEXIS 3509 (E.D. La. Mar. 21, 1995).
314. 548 U.S. 53, 57 (2006).
315. Id. at 58.
316. Id. at 59-60.
317. Id. at 60 (citing 420 F.3d 658 (7th Cir. 2005)).
318. Washington, 420 F.3d at 659, 662; see also supra notes 195-98 and accompanying text.
319. Burlington N., 548 U.S. at 69.
320. Id.
321. See, e.g., Ernest F. Lidge III, What Types of Employer Actions Are Cognizable Under Title VII?: The Ramifications of Burlington Northern & Santa Fe Railroad Co. v. White, 59 RUTGERS L. REV. 497, 520-25 (2007) ("The problem [of determining what contextual factors to consider] can be resolved in most cases by taking the White Court literally. By recognizing that all nontrivial actions are cognizable under Title VII, most problems dealing with the individual 'context' of the plaintiffs will be avoided. There may be rare situations in which a normally trivial matter will be actionable because of the individual plaintiff's circumstances.").
322. EEOC Guidance, supra note 34.
323. See generally id.
324. See generally id.
325. See generally id.
326. See generally id.
327. See id. at 8-10.
328. 411 U.S. 792 (1973).
329. Id. at 802.
330. Id. at 802-03.
331. Id. at 802.
332. Id. at 802 n.13.
333. 438 U.S. 567 (1978).
334. Id. at 575-76 (citations omitted).
335. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).
336. See, e.g., Blue v. Def. Logistics Agency, No. 05-3585, 2006 U.S. App. LEXIS 12903 (3rd Cir. May 24, 2006) ("To establish a prima facie case for discriminatory non-promotion using indirect evidence, a plaintiff must show . . . non-members of the protected class were treated more favorably."); Marinich v. Peoples Gas Light & Coke Co., 45 F. App'x 539 (7th Cir. 2002) ("To establish a prima facie case of employment discrimination, a plaintiff . . . must establish that similarly situated employees receive more favorable treatment.").
337. 365 F.3d 107 (2d Cir. 2004).
338. Id. at 115.
339. Id. at 121.
340. Id. at 122 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)).
341. No. Civ.02-3089, 2004 WL 2066770 (D. Minn. Aug. 13, 2004).
342. Id. at *1.
343. Id. at *6 n.3.
344. Id.
345. Id. (defendant did not challenge this prong).
346. See Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004).
347. See Sheehan v. Donlen Corp., 173 F.3d 1039 (7th Cir. 1999).
348. See Stern v. Cintas Corp., 319 F. Supp. 2d 841 (N.D. Ill. 2004).
349. EEOC Guidance, supra note 34, at 8-9.
350. Id. at 19-20.
351. Id. at 8-9 n.43.
352. See, e.g., Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150, 1154-55 (8th Cir. 2003).
353. See, e.g., Gallina v. Mintz, 123 F. App'x 558, 560-61 (4th Cir. 2005); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 114-16 (2d Cir. 2004).
354. See generally Note, Claire-Theres D. Luceno, Maternal Wall Discrimination: Evidence Required for Litigation and Cost Effective Solutions for a Flexible Workplace, 3 HASTINGS BUS. L.J. 158 (2006).
355. EEOC Guidance, supra note 34, at 7.
356. This cognitive bias approach to Title VII litigation is best linked with law professor Linda Krieger's germinal 1995 article, The Content of Our Categories, which identified a disconnect between the way bias works and courts' interpretations of the requirements of Title VII. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1238-41 (1995);
357. see Samuel R. Bagenstos, Implicit Bias, "Science," and Antidiscrimination Law, 1 HARV. L. & POL'Y REV. 477 (2007);
358. Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CAL. L. REV. 997, 1003 n.21 (2006)
359. (cataloguing some of the vast literature on implicit bias, including Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. REV. 1241 (2002);
360. Martha Chamallas, Deepening the Legal Understanding of Bias: On Devaluation and Biased Prototypes, 74 S. CAL. L. REV. 747, 748-53 (2001);
361. Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.-C.L. L. REV. 91 (2003);
362. Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56 ALA. L. REV. 741 (2005);
363. Ann C. McGinley, ¡Viva La Evolución!: Recognizing Unconscious Motive in Title VII, 9 CORNELL J.L. & PUB. POL'Y 415 (2000);
364. Michelle A. Travis, Perceived Disabilities, Social Cognition and "Innocent Mistakes", 55 VAND. L. REV. 481 (2002);
365. Rebecca Hanner White & Linda Hamilton Krieger, Whose Motive Matters?: Discrimination in MultiActor Employment Decision Making, 61 LA. L. REV. 495 (2001));
366. see also Audrey J. Lee, Unconscious Bias Theory in Employment Discrimination Litigation, 40 HARV. C.R.-C.L. L. REV. 481 (2005).
367. But see Gregory Mitchell & Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 OHIO ST. L.J. 1023 (2006);
368. Amy L. Wax, Discrimination as Accident, 74 IND. L.J. 1129 (1999).
369. See, e.g., sources cited supra note 288.
370. See generally Williams, supra note 121.
371. See Thomas v. Eastman Kodak Co. 183 F.3d 38, 59-61 (1st Cir. 1999) ("The Supreme Court has long recognized that unlawful discrimination can stem from stereotypes and other types of cognitive biases, as well as from conscious animus."); Pitre v. W. Elec. Co., 843 F.2d 1262, 1272-73 (10th Cir. 1988) (gender discrimination case finding the employer's reliance on subjective evaluation methods to be evidence of discrimination); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1064 (8th Cir. 1988) (age discrimination case finding that "[a]ge discrimination is often subtle and 'may simply arise from an unconscious application of stereotyped notions of ability rather than from a deliberate desire to remove older employees from the workforce'" (citing Synock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 155 (7th Cir. 1981))); EEOC v. Inland Marine Indust, 729 F.2d 1229, 1236 (9th Cir. 1984) (race discrimination case finding that "discrimination [that] manifested itself subtly, rather than through the 'culpability' of [defendant] . . . or though a 'scheme or plan,'" can still constitute "intentional discrimination"); Dow v. Donovan, 150 F. Supp. 2d 249, 263-64 (D. Mass. 2001) (gender discrimination case noting that "plaintiff does not need to prove a conscious motivation" on part of defendants); Rand v. New Hampton School, No. 99-134-JD, 2000 U.S. Dist. LEXIS 6188, *15 (D.N.H. Apr. 24, 2000) (age discrimination case holding that, if "[defendant] unknowingly wrote his negative performance evaluation of [plaintiff] based in part on his bias or stereotypes about older people, or if he unwittingly worsened their working relationship by exercising negative stereotypes based on age, and these actions led to [plaintiff's] firing, then the firing was discriminatory"). Compare Lee, supra note 288, at 488-90 ("While it may seem radical to think that modern courts would embrace unconscious bias theory in employment discrimination litigation, plaintiffs may find support for this proposition in judicial statements that Title VII reached unconscious bias.") with Krieger & Fiske, supra note 288, at 1034 ("Title VII's operative text prohibits these subtle forms of discrimination, but the science of implicit stereotyping has barely begun to influence federal disparate treatment jurisprudence. Indeed, from a behavioral realist standpoint, in many circuits, judicial conceptions of intergroup bias have actually regressed over the past two decades, even as psychological science has surged toward an increasingly refined understanding of the ways in which implicit prejudices bias the social judgments and choices of even well-meaning people.").
372. EEOC Guidance, supra note 34, at 6-7 (emphasis added).
373. See Krieger & Fiske, supra note 288.
374. EEOC Guidance, supra note 34, at 19 (emphasis added).
375. See Williams, supra note 121, at 410 ("This 'recall bias' causes people to selectively remember events that confirm stereotypes, and to forget or isolate events that disconfirm them.").
376. See id. at 433 ("[A]ttribution bias is the perception that when a mother is absent or late for work she is caring for her children, while a similarly-situated father is assumed to be handling a work-related issue.").
377. EEOC Guidance, supra note 34, at 20-21 ex.9.
378. Id.
379. Id.
380. Id.
381. 383 F.3d 580 (7th Cir. 2004).
382. See id. at 583.
383. Id.
384. Id. at 583-86.
385. Id. at 583.
386. Id.
387. Id.
388. Id.
389. Belkin, supra note 27 ("Fred"); Daniel Okrent, The Public Editor; Paper of Record? No Way, No Reason, No Thanks, N.Y. TIMES, Apr. 25, 2004, available at http.V/query.nytimes.com/gst/ fullpage.html?res=9D02E1D8123AF936A15757C0A9629C8B63 (discussing the history of the term "newspaper of record" as it applies to the New York Times).
390. See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 577 (6th Cir. 2004) (relying on Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) to hold that "[t]he facts Smith[, a transsexual,] has alleged to support his claims of gender discrimination pursuant to Title VII easily constitute a claim of sex discrimination grounded in the Equal Protection Clause of the Constitution, pursuant to § 1983").
391. See supra note 238 and accompanying text.