Emerging bias: 'Your family or your career'

When Elana Back took three months off for the birth of her first child, she was well on her way to tenure. The elementary school psychologist in Hastings-on-Hudson, N.Y., had excellent performance reviews both before and immediately after her leave. But a few months later, as her tenure review approached, she says the principal and another supervisor started questioning her commitment to the job.

Their reason, according to Ms. Back: She was a new mother.

In the lawsuit filed after she lost her job, Back details some of the comments she heard from her two female bosses: That her hard work was "just an act," and once she received tenure she'd start leaving early; that it would be too hard to do the job well with "little ones" at home; that "if my family was my priority ... maybe this was not the job for me."

The case hasn't been presented to a jury yet, but a decision in the Second Circuit Court of Appeals that allowed the suit to go forward has already given it landmark status. By acknowledging that stereotyping about mothers is a form of gender discrimination, it opened a new door for such claims. Previously, courts have required proof that employers treated mothers differently from similarly situated fathers (or vice versa), but in Back's and many other situations, there are no males in similar situations.

After decades of legal challenges to the "glass ceiling" in the workplace, this case highlights a more recent battle against what some have dubbed the "maternal wall." More broadly, it's a reminder to managers to beware of treating employees of either gender differently when they take on caregiving roles.

"For a long time ... the accepted wisdom was that you can't litigate work-family conflict," says Joan Williams, director of the Program on WorkLife Law at American University's Washington College of Law. But as Professor Williams and others have been challenging that notion in the past few years, she says, "there's definitely been a new momentum."

Her group has documented a dozen legal theories used in more than 50 successful caregiver-discrimination cases, with some of the judgments and settlements topping $500,000.

Employers certainly have the right to expect workers to fulfill their job responsibilities. But they don't always know how to draw the line between an employee's need to care for a relative and accommodations that become too burdensome for the business. That's why the WorkLife Law program is also offering model policies and training tools to help managers avoid landing in court.

The Back ruling came in April and has been resonating in human-resources newsletters nationwide. "Employers will say 'I better be more careful before I make a decision about a parent with a young child,' " says Eric Matusewitch, deputy director of the New York City Equal Employment Practices Commission. "The Second Circuit is very influential, and I think it's very likely that other circuits around the country will adopt this type of ruling."

Men come up against this type of discrimination, too. In a study of union arbitration cases related to employees' caregiving issues, for instance, the WorkLife Law group found that nearly two-thirds involved men.

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