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A recent bias suit filed by 12 female employees against pharmaceutical giant Novartis Corp. illustrates the increase of so-called “sex-plus” bias suits, employment law experts note. “Sex-plus” actions differ from traditional gender bias suits because they include claims of caregiver discrimination. “There’s been tremendous growth since 2000″ in sex-plus suits, said Cynthia Calvert, an employment lawyer and the deputy director of the Worklife Law program at American University Washington College of Law, which tracks caregiver discrimination cases and examines how mothers and fathers are treated in the workplace. “We’ve seen more cases in the first five years of this decade than all of the 1990s,” said Calvert, a Baltimore solo practitioner. In all, research performed by Calvert and her colleagues has found at least 170 verdicts and settlements across the United States in which caregivers sued employers and won either a verdict or a settlement. Of the 170 cases, about 15 are verdicts or settlements from the 1980s. More than 74 were recorded since 1999, with more coming to light all the time, Calvert said. “Sex-plus” is the cause of action that courts have used since the U.S. Supreme Court first recognized the category in 1971. While sex-plus plaintiffs are typically women with children, there have also been cases involving male primary caregivers or plaintiffs with aging parents. Plaintiffs’ lawyers assert there is plenty of talk about “work-life balance,” but employers continue to treat women differently once they have children. “We called it the ‘mommy track’ years ago, but we still see it all the time,” said Miriam Clark, an employment lawyer at New York’s Ritz & Clark. “Assumptions are made about [a mother's] willingness to travel, her job dedication and need for promotions.” The plaintiffs in the Novartis action allege a pattern of disparate pay and promotions based on their gender, and in some instances on the fact that they had taken disability leave or Family Medical Leave for pregnancy. Velez v. Novartis, 04 Civ 09194 (GEL) (S.D.N.Y.). The plaintiffs’ lawyers in Novartis �allege that sex-plus bias is one aspect of the lawsuit, as well as the fact that Novartis is a foreign employer with potential for an international plain�tiffs’ class, according to David Sanford of Sanford, Wittels & Heisler in Washington, the lead plaintiffs’ counsel in the case. Novartis Corp. is the North American arm of Switzerland-based Novartis A.G. Since the complaint was filed, the firm has received about 200 calls from potential plaintiffs, many of whom cite problems with pregnancy leave, Sanford said. “Eventually, we’re hoping to have witnesses in every state,” he said. All of the named plaintiffs are women from Novartis’ sales division. Two of them claim that they were denied access to Novartis’ management-development program after taking Family Medical Leave for childbirth. One said her supervisor told her that she was “under the gun” after she returned. Novartis defense counsel Richard Schnadig of Chicago-based Vedder, Price, Kaufman & Kammholz called the complaint “utterly groundless.” Schnadig said they have just begun to investigate the specific allegations of the 12 plaintiffs, but added that the company has been recognized as an outstanding employer that promotes and accommodates women’s needs — maternity included. Scott Wenner, an employment defense lawyer in the New York office of Philadelphia’s Schnader Harrison Segal & Lewis who has defended sex-plus �lawsuits, said most large employers with legal counsel have an awareness of sex-plus discrimination. “Sex-plus has been around a long time, but it just hasn’t caught on to the degree of popularity we’re seeing today,” Wenner said. If companies want to avoid litigation, they need to make sure that supervisors are getting training in vulnerable areas, like sex-plus, he added. Calvert, whose practice advises employers on how to prevent such lawsuits, agrees that supervisors are a key to the solution. Dee McAree is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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