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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 U.S. Court of Appeals for the 2nd Circuit ruled April 7. A three-judge panel said that gender discrimination based on attitudes toward motherhood can be alleged “in the absence of evidence about how an employer treats fathers.” The decision in Back v. Hastings on Hudson Free School District concerned alleged discrimination against Elana Back, an elementary school psychologist. She claimed her superiors launched a campaign to deny her tenure after making comments about her work commitment when she returned after having a baby. Back said she received several outstanding performance reviews before and after giving birth. But as her tenure review approached, she claimed, superiors questioned whether she would be able to work a full day or commit to her job. The defendants vigorously disputed her claim that the negative evaluations were a pretext for discrimination. A trial judge had granted summary judgment for the defendants, ruling that Back failed to prove that the reasons given for denying her tenure were pretextual. But the 2nd Circuit reversed that ruling, paving the way for a trail in Back’s suit. Judge Guido Calabresi wrote that the case presents “a crucial question: What constitutes a ‘gender-based stereotype?’ “ Referring to claims in Back’s lawsuit, Calabresi 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 defendants had argued that stereotypes about pregnant mothers are not based on gender, but instead on “gender plus parenthood,” so there must be comparative evidence about what was said about fathers. Judge Calabresi disagreed, saying the Supreme Court has made it clear that “at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based.” Mark Hamblett is a reporter at the New York Law Journal, an American Lawyer Media daily newspaper, where this article first appeared.

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