In our last article, we discussed Title VII's application to gender based harassment cases. Title VII also prohibits gender discrimination based on stereotypes.
Stated differently, the law provides that women have the right to participate in the workplace without the burden of stereotypes regarding whether they can fulfill work related responsibilities.
Consider these facts. A female employee sought a job promotion. Her performance reviews had been excellent and as it later turned out, were considerably better than the ones of the other person selected for the promotion.
The employee had an 11-year-old child and 6-year-old triplets. There was no evidence that raising four children had interfered with her job performance.
To the contrary, the employee's husband was a "stay-at-home" father and was the principal caregiver to the children.
During the interview process, the decision makers made reference to the four children. After the promotion was given to someone else, the employee was told that with "the kids and all", she had "too much on her plate."
The employee sued for gender discrimination and prevailed. There was no evidence that the employee was denied the position due to her job performance.
Rather, the evidence indicated that the decision was based on the employer's assumption that a woman with four children could not perform the job requirements. This was plain wrong. At the heart of discrimination is the act of penalizing an employee not for what she has done, but rather for something she simply is or is perceived to be.
This case teaches an important lesson. An employer is free to uniformly discipline, fail to promote or fire an employee whose performance suffers, regardless of the reason, without necessarily incurring liability under Title VII. However, an employer is not free to assume that a woman -- simply because she is a woman -- will be a less productive worker simply because of family responsibilities. To do so can lead to legal liability under Title VII.
Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.
