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Family responsibilities, dentist appointments, and sex discrimination, oh my!

September 15th, 2015  |  Kathy Kapusta

While Title VII may prohibit discrimination based on race, color, religion, sex, or national origin, it is not “a ‘get out of work free’ card for parents with young children—whether male or female,” declared a federal court in Wisconsin recently in disposing of the sex discrimination claim of an employee fired after missing work to take three of her five children to the dentist. Although the evidence might have allowed a jury to infer she was terminated in part because of her family responsibilities, there was simply nothing to suggest she was fired because she was female, said the court, emphasizing that this “is not a distinction without a difference.”

The employee and mother of five was hired in June 2013 as an educational services coordinator in a county mental health facility. Scheduled to begin orientation on July 8, she was unable to find child care on such short notice so her start date was pushed back a week.

Can’t your husband take them? Although the employee had limited conversations with the director of educational services during her orientation, she claimed they talked about her child care obligations and responsibilities and the director’s frustrations with employees who were not regularly at work. At some point, the employee her she would need to attend weekly future appointments for her children for physical and speech therapy, school, and “birth to three” classes for her newborn twin daughters. In response, the director allegedly made comments such as “Why do you need to do that?” “You can’t do that after work?” “Can’t your husband take them?” and “I understand, but we need you here at work.”

Eleven days after the employee was hired, she was fired when she took a day off to take her children to the dentist. Alleging unlawful sex discrimination in violation of Title VII, she sued.

Sex plus claim. The parties first disputed whether the court should consider her “sex plus” claim that she was discriminated against on the basis of gender plus her family care responsibilities. Observing that the Seventh Circuit has not decided whether it recognizes a sex-plus theory of discrimination that hinges on disparate treatment based on sex in conjunction with another characteristic, the court here, looking to the Second Circuit, determined that the question did not need to be answered because “‘[t]he term ‘sex plus’ or ‘gender plus’ is simply a heuristic…developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.’”

Further, said the court, Title VII does not prohibit discrimination on the basis of family responsibilities alone, but rather on the basis of family responsibilities plus gender. Pointing out that “gender plus” claims are really a sub-category of gender discrimination claims, the court explained that a plaintiff must allege discrimination, harassment, or retaliation based on her gender plus her familial status, not merely familial status alone.

Illegal gender stereotyping. After noting that the employee’s claim mutated from a gender-plus claim into a claim of illegal stereotyping, the court observed that the Supreme Court and several circuits have confirmed that the assumption a woman will perform her job less well due to her presumed family obligations is a form of sex stereotyping and that adverse job actions on that basis constitute sex discrimination. Here, the court found no evidence to support a theory of discriminatory stereotyping that led to the employee’s discharge. Not only did the county hire her knowing she was a woman with five young children at home, the record did not reflect that any illegal stereotyping led the county to believe that caring for her children would interfere with her ability to work during scheduled hours.

Key distinction. On the contrary, the employee told the director she was unable to attend the first week of orientation because of childcare issues and informed her shortly after being hired that she would likely need to miss work in the future because of her children. The county’s belief she would miss work as a result of her family responsibilities, thus, was based in reality and not in an illegal gender-based stereotype. This distinction—between illegal stereotyping and actual adverse effects on performance—was key, said the court. The only question before it was whether the employee provided convincing circumstantial evidence that would allow a jury to infer intentional sex discrimination by the decisionmaker and the answer to that question was undeniably no.

Director’s inquiries. While the employee argued that the director’s comments about her child care obligations reflected unlawful sex discrimination, the court again pointed out that her own statements indicated her work schedule might be affected by her childcare duties. In addition, she missed the first week of orientation as a result of childcare duties. Thus, it was unclear how a jury would find that the director’s inquiries had anything to do with sex discrimination. As to her argument that the time between her hire and termination was “suspicious in itself,” the court pointed out that the director hired her with full knowledge of her gender and the fact that she had children at home.

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