The Barrier of the Maternal Wall

You’ve probably heard of the glass ceiling (the barrier unfairly preventing certain employees — mostly women – from rising to top jobs based mostly on gender). But more and more workers are also finding their careers are also affected by another kind of bias — the “Maternal Wall.”

The nickname of Maternal Wall comes from the cases brought mostly by women (92 percent) with children against employers claiming they’ve been turned down for jobs because the employer feels they have too much responsibility at home. This includes caring for not only children, but also sick or elderly relatives. The Maternal Wall is nothing new. But these days, increasing numbers of employees who hit this wall are taking their complaints to court. And in many cases, they’re winning.

This new legal battleground was the subject of a study completed in July 2006 by Hastings College of Law at the University of California, by researchers who wanted to find out who is affected, and who is winning the lawsuits. The legal term is family responsibility discrimination (FRD). It’s not about gender. It’s about unfair treatment and anyone can be affected, men and women, parents and non-parents.

The Supreme Court stands up for families

The first major FRD lawsuit went all the way to the Supreme Court back in 1971. Ida Phillips accused her employer, Martin Marietta Corporation, of barring women with school-aged children from applying for certain positions even though they hired men with school-aged children for the same jobs. The company defended itself by saying it did not discriminate by gender because it did hire women for those jobs, as long as the women were childless. Not good enough said the Supreme Court, which ruled in favor of the employee, and declared Martin Marietta treated mothers unfairly. (Phillips v. Martin Marietta Corp., 400 U.S. 542, 1971).

Once the decision was handed down, a few similar cases trickled in. It wasn’t until the mid ’90s that the trickle became a flow. Between 1996 and 2005, four hundred and eighty-one family responsibility discrimination lawsuits were brought. That’s an increase of more than four hundred percent over the previous decade. Why the sudden burst of litigation?

Researchers believe the change came after the passage of the 1991 Civil Rights Act signed by President George H.W. Bush which gave employees who charge sex discrimination the right to a jury trial, and the right to receive awards for suffering and to collect punitive damages.

What law is broken when employers discriminate this way?

There are no laws specifically prohibiting treating people with family responsibilities different than those who are not primary caregivers. But FRD claims are supported by various state and federal laws, including these:

  1. Title VII of the 1964 Civil Rights Act: Among other things, this law prohibits discrimination based on pregnancy.
  2. The 1963 Equal Pay Act requires equal pay for substantially equal work.
  3. The 1993 Family Medical Leave Act allows up to 12 weeks of unpaid leave for family and medical reasons.

Who is suing and who is winning in court?

The Maternal Wall study shows that 38 percent of cases are initiated by employees who are considered professionals, and the vast majority (62 percent) by nonprofessionals. Perhaps this is due to those who are nonprofessionals feeling they have fewer options available in the workplace, and therefore they are more willing to fight for their jobs rather than go elsewhere.

Employees who are able to prove their FRD cases win an average of $100,000, but some awards have been as high as $25 million.

As far as who wins, this depends on some extent on where the lawsuit is filed. So far, the majority of cases have been initiated on the East Coast. Of those lawsuits, there is almost an equal split between those won by the employees and those won by their bosses.

Somewhat fewer cases are filed in the South, the Midwest, and the West Coast, and in those areas, more lawsuits are won by the employer, roughly 63 percent. Even so, employees with legitimate complaints should not be discouraged. Take a look at what happened in one fairly recent lawsuit where an employee proved her case with the unintended help of her supervisor.

When Tracey Lust, a long-term sales manager for Sealy Mattress was passed over for a promotion in favor of a younger, less experienced male, she sued her employer claiming family responsibility discrimination.

Unfortunately for the Sealy Corporation, the plaintiff’s supervisor admitted Tracey Lust was qualified for the job, but he didn’t give it to her because she had children. Also, he said, the job required relocation and he assumed she wouldn’t want to move her family. This was in spite of the fact Lust had not only expressed interest in the job but had filed paperwork indicating her willingness to relocate.

The court found in favor of the employee, awarding her $100,000, plus $1,500 in back pay and punitive damages of $1,000,000. The amount was later reduced to a total of $301,500 because the state puts a cap on awards for damages. (Lust v. Sealy, Inc., 383 F3d 580 7th Circuit,2004)

Which Companies are Being Hauled into Court?

Most family responsibility discrimination cases are filed against small, local businesses. But increasingly, America’s giant companies are also finding themselves in legal hot water. In fact, some of the companies being taken to court, like IBM and Sara Lee, are not only considered family friendly, but they’ve even been named to Working Mother magazine’s list of Best Companies for Working Mothers.

It’s clear, regardless of size and overall perception, no business is immune if they base employment decisions on non-work factors.

Employers …

  1. Cannot make assumptions about a worker’s capabilities based on his or her caregiver roles.
  2. Must avoid bias in policies and practices.
  3. Must make employment decisions based on accomplishments and business needs, not on assumptions about employee commitment.
  4. Must not make assumptions about an employee’s capabilities based on his or her caregiver roles.
  5. Cannot assume employees with family responsibilities will fail to produce or will take excessive time off from work to fulfill those family responsibilities.
  6. Cannot base employment decisions on such things as an employee’s willingness to travel for business, to accept promotions, or their commitment to the job if they are allowed to telecommute.

When all is said and done, whether an employer gets taken to court for family responsibility discrimination or not, and even if they go to court and win, this type of unfair treatment will likely hit them where it hurts … their financial bottom line. The Maternal Wall study concluded “employees who feel supported by their supervisors and who are not distracted by unnecessary conflicts between work and personal lives are more loyal and more productive.” This means when employers get taken to court for unfair discrimination, even if they win, they lose. It’s just common sense to realize a dedicated employee who is allowed to balance work and family life will generally handle both responsibilities well.


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