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Stereotyping about the qualities of mothers and their ability to balance work and home is a form of gender discrimination, the 2d U.S. Circuit Court of Appeals ruled last week. The court said that gender discrimination based on attitudes toward motherhood can be alleged “in the absence of evidence about how an employer treats fathers,” in Back v. Hastings-on-Hudson Free School District, 03-7058. The decision concerned alleged discrimination against Elana Back, a school psychologist at the Hillside Elementary School. She claimed that her superiors launched a campaign to deny her tenure after making several comments about her commitment to the job when she returned to work after having a baby. Back said she received several outstanding performance reviews before and after giving birth. But as her tenure review approached in 2000, she claimed, two superiors repeatedly questioned whether she would be able to work a full day at the elementary school. One allegedly said “she did not know how she could perform her job with little ones” and it was “not possible for [her] to be a good mother and have this job.” Her bosses, Back claimed, also questioned whether she would show the same level of commitment once she had tenure, given that she was raising a family. Back alleged that the superiors encouraged parents who had complained about her in the past to put their complaints in writing, and that she soon began getting negative evaluations of her performance. The defendants vigorously disputed her claim that the negative evaluations were a pretext for discrimination. After learning that her probationary appointment would be terminated in September 2001, Back filed suit. ‘Stray remarks’? Judge Charles L. Brieant of the Southern District of New York granted summary judgment for the defendants, finding, in part, that their alleged comments were “stray remarks” that were not evidence of sex discrimination and that Back had failed to prove that the reasons given for denying her tenure were pretextual. At the 2d Circuit, however, Judge Guido Calabresi wrote that the case presents “a crucial question: What constitutes a ‘gender-based stereotype’?” He said “it takes no special training to discern stereotyping in the view that a woman cannot ‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who received tenure ‘would not show the same level of commitment [she] had shown because [she] had little ones at home.’ ” The ruling paves the way for a trial before Brieant.

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