I. Introduction
Business-oriented
firm seeks attorney with strong securities experience to handle
sophisticated mergers & acquisitions work. The firm's clients
range in size from start-up/emerging growth to middle market and large
public companies. The ideal candidate has sophisticated experience,
preferably working with publicly-held companies. Mothers with young children need not apply.
II. Analysis
In this day and age such an advertisement would never appear because
employers know it is illegal to engage in discriminatory practices
against mothers. Or is it? While federal laws prohibit employers from
inquiring about an applicant's marital status, only twenty-two states
and Puerto Rico specifically prohibit employers from asking about an
applicant's marital status. [1] This means employers in twenty-eight
states can ask applicants if they are married or if they have
children. This article examines the problems these interview questions
create, what can be done to curb these problems, and the future for
employers and job applicants.
In a study to be published next month in the American Journal of Sociology,
Cornell University researchers sent out resumes and cover letters to
real employers for hypothetical job applicants. [2] All had the same
credentials, but the letters and resumes contained hints to indicate
that some of the applicants were parents. [3] The researchers wanted
to find out if employers are less likely to pursue an interview if they
find out that a candidate is a parent. [4] The answer was yes for
mothers, no for fathers. [5]
The same study shows the problem is widespread; mothers are
forty-four percent less likely to be hired than non-mothers who have
the same resume, experience, and qualifications; and mothers are
offered significantly lower starting pay (study participants offered
non-mothers an average of $11,000 more than mothers) for the same job
as equally qualified non-mothers. [6]
Consider the case where the plaintiffs were found to have been
properly discharged after refusing to attend a three-week training
session due to having infant children at home. [7] The court reasoned
that there are no cases classifying women with infant children as a
subcategory of the protected class in a disparate impact discrimination
case. [8] Although the decision to fire the plaintiffs is unfiar, it
does not constitute discrimination. [9]
The court opinion suggests that while mothers cannot be discharged
for having children, they can be fired if their children interfere with
their work performance. This is the concern many women face. It
becomes even more of an uphill battle for mothers who are seeking jobs.
By virtue of their choice to have children, mothers have to face an
additional hurdle in their job searches. The Pregnancy Discrimination
Act prohibits discrimination against women on the basis of pregnancy by
categorizing employment decisions made "because of or on the basis of
pregnancy, childbirth, or related medical conditions" as decisions made
"because of sex." [10] However, the "because of sex" language does not
extend to mothers which means they have no protection from
discrimination in the hiring process. The main concern here is not
about bias against mothers who are already in the workforce, it is
about discrimination against those mothers who are seeking jobs.
What can be done to address these problems? Pennsylvania
legislators are currently debating two bills that if passed, would
amend the Pennsylvania Human Relations Act of 1955 to include language
making it illegal for employers to ask job applicants about their
marital/familial status. [11] This is certainly a step in the right
direction. The bills would send a clear message to employers that
discrimination based on familial status is strictly prohibited.
Additionally, the passage of the two bills would signal the remaining
twenty-seven states to follow suit.
Of course, one cannot expect legislation to magically cure all the
problems. While employers will stop asking if the job applicant is
married or has children, they can still learn of an applicant's
familial status if the applicant lists on her resume that she is the
president of the PTA. Moreover, how will the legislation impact the
work environment?
Some reports indicate that backlash is growing against mothers who
demand flexible work schedules. [12] A woman sought a work schedule
allowing her to split her work week between Dallas and Chicago so her
family does not have to move. [13] Her company agreed then slashed her
pay by twenty percent. [14] Does this constitute discrimination? What
about work schedules defining "full-time" as working fifty or more
hours per week? If some mothers cannot meet that time schedule and are
discharged from their jobs, it it discrimination? This is a future
facing female law students pursuring jobs with big firms. It is next
to impossible to bill 1800 hours a year without working fifty-plus
hours per week. Add children into the equation and one is left with a
big question mark.
Should discrimination against mothers in the hiring process finally
come to an end, employers may well turn to facially neutral policies
with disparate impacts on mothers. Such policies may include: rules
that employees cannot use sick days to care for sick family members;
restrictions on leave or absences within certain periods of time; and
compensations structures that reward (or penalize) employees based on
the number of hours they work rather than productivity or performance.
[15]
Fortunately, there are protections against such measures. For
mothers who choose to work on part-time schedules, paying them at a
lower rate than someone working on a full-time schedule could violate
the Equal Pay Act. [16] Additionally, the U.S. Supreme Court has
recognized that employers using gender stereotypes to make workplace
decisions constitutes sex discrimination. [17]
III. Protections
Though not perfect, there are protections available to women who are
in the workforce. The trouble for many mothers is that they are not
able to enter the workforce to benefit from those protections. One
hopes that the Pennsylvania legislators can pass the bills banning
discrimination against mothers in the hiring process for it will mark a
step in the right direction for working mothers.
[1] Sheila Gibbons, 'Maternal Profiling' Story Has Faint Heartbeat, Women's eNews, Dec. 6, 2006, http://www.womensenews.org/article.cfm/dyn/aid/2986/context/archive.
[2] Kara Jesella, Mom's Mad. And She's Organized., N.Y. TIMES, Feb. 22, 2007, available at http://www.nytimes.com/2007/02/22/fashion/22mothers.html?ei=5070&en=cb6b825fd1607b65&ex=1172811600&emc=etal&pagewanted=all.
[3] Id.
[4] Id.
[5] Id.
[6] MomsRising.org, http://www.momsrising.org/PA (last visited Feb. 28, 2007).
[7] Pittsnogle v. W. Va. Dep't of Transp., 605 S.E.2d 796, 803 (W. Va. 2004).
[8] Id.
[9] Id.
[10] 42 U.S.C. § 2000e(k) (2000).
[11] MomRising.org, supra note 6.
[12] Jenny Deam, Despite Women's Gains, Mothers Still Face Hiring Obstacles, The Denver Post, Feb. 16, 2006, available at http://www.azcentral.com/families/articles/0216momswork0216.html.
[13] Id.
[14] Id.
[15] Issue Briefs: Current Law Prohibits Discrimination Based on Family Responsibilities and Gender Stereotyping, http://www.uchastings.edu/site_files/WLL/IssueBriefFRD.pdf (last visited Feb. 28, 2007).
[16] Id.
[17] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).