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Discrimination on the basis of sexual stereotyping — which takes a number of forms — is an issue that courts have been grappling with for several decades. Among these is what some have called “maternal wall” discrimination, in which a female employee is discriminated against by her employer because she has children. In Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2004), the 2nd U.S. Circuit Court of Appeals addressed maternal wall discrimination and held that such conduct is an actionable form of gender discrimination. ‘SEX PLUS’ CLAIMS The plaintiff in Back was a school psychologist at an elementary school in Westchester County, N.Y., who was considered for, and denied, tenure in her third year at the school. Ms. Back, who received excellent performance evaluations and considerable praise for her work during her first two years, took maternity leave during her second year. During her third year, she alleged that the school’s principal and district director of pupil personnel services made comments to her questioning whether being a mother was compatible with being committed to her work and holding a tenured position. The two supervisors withdrew their earlier support for Back obtaining tenure, and she was terminated by the school district. Back then commenced an action under 42 U.S.C. � 1983 alleging a violation of her rights under the Equal Protection Clause of the U.S. Constitution. The district court granted the defendants’ motion for summary judgment, ruling, among other things, that a plaintiff cannot bring a “sex plus” claim in the end Circuit and that such comments as “I don’t know how you could possibly do this job with children” were stray remarks. Reversing the district court’s grant of summary judgment as to two of the four defendants, the 2nd Circuit addressed two key issues: (1) “whether stereotyping about the qualities of mothers is a form of gender discrimination” and, (2) assuming that it is, “whether this can be determined in the absence of evidence about how the employer in question treated fathers.” Answering both questions in the affirmative, the court defined a sex plus case as one in which an employer “classifies employees on the basis of sex plus another characteristic,” 1 and added that it is a “judicial convenience developed in the context of Title VII to affirm that plaintiffs can … survive summary judgment even when not all members of a disfavored class are discriminated against.” Therefore, under the sex plus theory, employers may not treat women differently than male workers on the basis of their gender “plus” a facially neutral feature or quality such as having young children. Back removed any lingering ambiguity about whether sex plus claims are actionable in the 2nd Circuit. The 2nd Circuit specifically rejected the defendants’ contention that even if “sex plus”stereotyping of mothers were a form of gender discrimination, Back’s failure to demonstrate thatdefendants treated similarly situated men differently warranted summary judgment. Instead, the court held that discrimination against an employee cannot be rectified by showing that other employees of the same sex are treated equitably or favorably. The court thus invalidated the rationale of Bass v. Chemical Banking Corp., 1996 WL 374151 (S.D.N.Y.), where a district court had denied a woman’s maternal wall sex discrimination claim because she produced no evidence that her employer had treated her differently than men with children. Although other circuits have recognized a sex plus cause of action under Title VII (see, e.g., Santiago- Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000), the district courts in this circuit prior to Back have been inconsistent in their rulings on sex plus claims — particularly with regard to the issues of comparitors, i.e., evidence that the employer treated women with children differently than men with children. In Trezza v. The Hartford, Inc., 1998 U.S. Dist. LEXIS 20206 (1998), for example, a Southern District court upheld the failure-to-promote claim of a mother asserting disparate treatment gender discrimination based on her status as a mother. However, the plaintiff in Trezza prevailed because she was able to produce comparitors; had she not, the result would presumably have been different. In Bass, lack of comparitors was fatal to the plaintiff’s sex plus claim. Following Back, of course, evidence of comparitors in a sex plus case is no longer necessary. The Back court referred to Brown v. Henderson, 257 F.3d 246, 252 (2001), where the 2nd Circuit observed that discrimination against an employee cannot be disproved solely by evidence of favorable treatment of employees of the same gender. DEVELOPMENT OF LAW Sex plus discrimination, the principle on which sexual stereotyping maternal wall litigation is based, was first recognized by the U.S. Supreme Court more than 30 years ago in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). The employer in Phillips pursued a practice of not permitting mothers of school-age children to apply for positions that were open to men with young children. Treating men with children and women without children the same, reasoned the Court, did not justify discrimination against mothers. As a result, women under Title VII have a sex plus cause of action if they can demonstrate that an employer treated them less favorably than female workers without children or men with children. PriceWaterhouse v. Hopkins, 490 U.S. 228 (1989), expanded on Phillips by holding that sex stereotyped remarks or actions may be evidence that gender unlawfully played a part in an employment decision. Nonetheless, it has taken several decades for the holding and rationale of Phillips to percolate down to and be fully recognized by the lower federal courts. See, e.g., Piantanida v. Wyman Center, Inc., 927 F.Supp. 1226 (E.D. Mo. 1996), where the court, which interpreted a sex discrimination claim based on the plaintiff’s status as a new mother as a claim under the Pregnancy Discrimination Act (PDA), failed to employ a sex plus analysis, and dismissed the case. Piantanida illustrates a problem that maternal wall plaintiffs have encountered since Phillips. Some plaintiffs attorneys mistakenly have brought such cases under the PDA, with largely unsuccessful results, and courts, too, sometimes have construed maternal wall allegations as asserting causes of action under the PDA. In fact, the PDA only prohibits discrimination on the basis of pregnancy and does not protect mothers caring for children. As a result, maternal wall cases brought under the PDA — presumably commenced by attorneys unfamiliar with the sex plus theory — have been dismissed because they were brought under the wrong statute. The Back court’s opinion does not mention one element critical to an understanding of sex plus theory and how to use it: the question of what constitutes a facially neutral characteristic. The “plus” in a sex plus case must either be a fundamental right — for example, having children or marrying — or an immutable physical characteristic. In Martinez v. NBC, Inc., 49 F.Supp.2d 305, 309 (S.D.N.Y. 1999), the court refused to apply a sex plus analysis in a case involving breast feeding as an allegedly facially neutral characteristic, and in Schatzman v. County of Clermont, 2000 U.S. App. Lexis 25957 (6th Cir. 2000), the court held that age did not qualify as a sex plus factor. Nonetheless, Back resolves any remaining uncertainty regarding the 2nd Circuit’s position on maternal wall and other sex plus litigation. The decision hopefully will help inform general counsel about this somewhat murky area of discrimination law. Pearl Zuchlewski, a partner in Goodman & Zuchlewski, is chairwoman of the New York State Bar Association’s Labor and Employment Law Section. END NOTES 1. Quoting Barbara Lindemann and Paul Grossman, Employment Discrimination Law 465 (3rd Ed. 1996).

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