While Title VII’s coverage is broad, courts have repeatedly held that it does not prevent "child care" discrimination. In the recent case of Zaengle v. Rosemount, No. 08-2010 (E.D. Pa. May 17, 2013) (Ludwig, J.), however, the U.S. District Court for the Eastern District of Pennsylvania held that a supervisor’s repeated comments to a single mother to the effect that she was spending too much time with her children, coupled with evidence of disparate treatment, created a triable issue of gender discrimination.

Ten Years of Sales Success

Kathryn Zaengle began working in 1993 as a salesperson for Rosemount Inc., a manufacturer of temperature and pressure control instruments. For the first 10 years of her employment, she was a highly-rated performer, such that she became a "Level 5" salesperson — the pinnacle of sales rankings at the company. In reaching this level, she was supported by her supervisor, Tom Thomas. Despite his substantively high ratings for Zaengle, Thomas’ evaluations often referred to Zaengle’s "personal life," "family demands" and "children," according to the opinion. None of the evaluations of the 11 other salespersons in her unit (all men) contained such references.

In the summer of 2004, Zaengle asked to be excused from a sales meeting because her son was ill. Thomas responded that Zaengle could leave her son with a colleague’s wife who "stayed home and [was] available for child care purposes," the opinion said. Not surprisingly, Zaengle rejected this suggestion.

At the end of 2004, with her performance declining, Thomas evaluated Zaengle by observing, in part, that she needed to better "balance her professional and personal life obligations," according to the opinion. Also in 2004, Zaengle was involved in a commission dispute with a male co-worker. She, alone, was criticized for "unprofessional" behavior associated with the dispute.

Child Care Comments

In February 2005, when Zaengle missed a customer luncheon, Thomas told her that "none of the other salesmen have to worry about children," the opinion said. Just a few weeks later, Thomas placed Zaengle on a "personal improvement plan" for her diminished 2004 performance. According to Zaengle, as part of the evaluation, Thomas stated to her that she was "too tied up with your children and are not getting out of your home office enough." Zaengle alleged that male employees had similar performance issues but were not given any type of "improvement plan."

Commission Disputes

In 2005 and again in early 2006, Zaengle was involved in two more commission disputes with male colleagues. Both of these disputes resolved unfavorably to Zaengle. Most importantly, during the second dispute, Thomas again criticized Zaengle for "unprofessional" conduct. At this point, Zaengle accused Thomas of "singling her out because of her gender and her children and told him she was thinking of seeing a discrimination lawyer," the opinion said. Shortly thereafter, Thomas issued Zaengle a "warning" that had the effect of delaying her annual pay increase by six months. When she received this warning, Zaengle told Thomas that she believed that she was being disciplined because of her "single mom status." Six months later, the warning period ended and Zaengle received her pay increase. Her employment with Rosemount continued thereafter.

Discrimination Claims

Zaengle brought suit against Rosemount, claiming that she was denied the commission to which she was entitled due to gender discrimination. She also claimed that she was retaliated against, which resulted in a delay in her 2006 pay increase. Zaengle further asserted various state law claims. At the close of discovery, Rosemount moved for summary judgment on all claims.

Initially, the court found that the disparity in the commission splits "could support an inference that the employer did not act for the stated reason." This analysis would be of some concern to employers, as it seems to indicate that the disparity, in itself, could support a finding of pretext. More likely, Thomas’ repeated comments supported the inference that the commission splits were discriminatorily resolved against Zaengle.

The court further observed that Thomas’ comments and repeated references to Zaengle’s family/work balance could evidence that the written warning was "not lodged for its stated purpose."

With respect to Zaengle’s retaliation claim, based on the written warning issued after she referenced the possibility of contacting a "discrimination lawyer," the court found that this single reference was sufficient to rise to the level of "protected activity" as a matter of law. While Rosemount submitted evidence that 2006 was not the first time that Zaengle had been criticized for "unprofessional" behavior, the fact that the warning followed the "protected activity" so closely, when coupled with the disparate treatment, created a genuine issue of fact that precluded summary judgment.

The court dismissed Zaengle’s various state law claims, including breach of contract and discrimination in violation of Pennsylvania’s Equal Rights Amendment.

It should be noted that the court made no mention of the fact that Thomas had been Zaengle’s supervisor as she rose to the highest level of sales performance (albeit while commenting throughout on her family status). Nor was there a detailed discussion of how Zaengle’s alleged "unprofessional" behavior compared with behavior that may have been exhibited by her male colleagues. Nevertheless, Thomas’ repeated comments about Zaengle’s parenting responsibilities made any disparate treatment suspect with respect to her gender discrimination claim. •

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.