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A law professor calls it a “new glass ceiling” that has spurred a small litigation trend in an underdeveloped area of discrimination law. Though women have won broad rights in the workplace, a new generation of working mothers has begun to sue employers, claiming they have been discriminated against when tending to family needs. And something else is new, the professor added: Fathers have joined in. “Employers know enough not to say that women aren’t welcome here,” said the law professor, American University’s Joan Williams. But some haven’t recognized this second form of discrimination, she said. In their view, “when they say ‘mothers aren’t promotable,’ that’s not bias. That’s just one of the hard truths of life,” Williams said. In a study released last month entitled “The New Glass Ceiling: Mothers — and Fathers — Sue for Discrimination,” Williams and co-author Nancy Segal examined more than 20 cases. They found plenty of statements of open bias. Among other examples, they cited an employer who told a plaintiff that when mothers go to work, “I don’t see how you can do either job well.” Another employee was told she was fired because, having given birth, she was “no longer dependable.” And in a rare case involving a man, a state trooper was informed that his wife would have to be “in a coma or dead” for him to qualify as his baby’s primary caregiver. While no federal law specifically protects employees who are caregivers, plaintiffs’ lawyers have sued under Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act, the 14th Amendment’s equal protection clause and equivalent state laws, according to Williams and Segal. Title VII is the one used most often, said Segal, legal director of American University Law School’s program on gender, work and family, of which Williams is executive director. Claims may be brought under a variety of theories, Segal said. A common one is “sex plus,” under which employers are proscribed from treating employees differently on the basis of their sex plus some neutral characteristic, such as having children. Steven Eckhaus of New York’s Eckhaus & Olson has sued The Hartford, a financial services company, three times in federal court in the Southern District of New York on behalf of in-house lawyers who claimed they were discriminated against because they are mothers. Two cases are pending. The third, Trezza v. The Hartford, No. 98 Civ. 2205 (S.D.N.Y.), which settled in 2000, alleged that Joann Trezza was subjected to a hostile work environment and disparate impact discrimination as well as discriminatory failure to promote. Claims under the first two theories fell before a motion to dismiss, but the last survived. “The Trezza case settled,” Eckhaus said in an interview, “and I can’t discuss it further.” However, he pointed to a case he wasn’t involved in to demonstrate the requirements of a successful sex-plus claim. In Bass v. Chemical Banking Corp., No. 94 Civ. 8833 (S.D.N.Y.), District Judge Sidney Stein found that plaintiff Andrea Bass could arguably show that she was a member of a protected class, was qualified for the promotion she sought and was not promoted. But she could not show that the failure to promote “occurred under circumstances giving rise to an inference of unlawful discrimination” and that her employer’s “articulated reason is merely a pretext.” Her sex-plus argument “must fail,” Stein wrote, “because Bass has not produced any evidence to show that Chemical treated her differently than married men or men with children … . At most, a rational fact-finder could infer from the fact that Chemical promoted a single woman with no children rather than Bass that Chemical discriminated against married persons or persons with children, discrimination not prohibited by Title VII.” In other words, Eckhaus said, you have to show that the employer denied promotion to a woman with children and either offered or considered for promotion a man with children. In Trezza, District Judge Michael Mukasey noted that the plaintiff was passed over for a promotion she sought while two men with children who were her juniors and had lower performance evaluations were offered the job. “It’s not that these are bad people or bad companies,” Eckhaus said. Often employers who think they’re being sensitive to employees’ needs discriminate without even realizing it, he said. In one of his pending cases, Capruso v. The Hartford., No. 01 Civ. 4250 (S.D.N.Y.), Lisa Capruso chose to work a “flexible schedule” after her children were born. Eckhaus said he believes the company offered this option with the best intentions. Nevertheless, his lawsuit alleges she was denied promotion simply because she used it. “The company denies these charges. That’s what the lawsuit is all about,” said Scott Wenner, a partner in the New York office of San Francisco’s Littler Mendelson who represented The Hartford in Trezza and other cases. Eckhaus’ comments about employers’ unintentional discrimination lack any empirical basis, he added. A FATHER’S SAGA Robin Cockey of Salisbury, Md.’s Cockey, Brennan & Maloney wasn’t as inclined as Eckhaus to give employers the benefit of the doubt. His client has been locked in bitter litigation for more than seven years with the Maryland state police. Now a stay-at-home dad caring for his two daughters, H. Kevin Knussman was a state trooper for 23 years, the last 18 as a paramedic on a medevac helicopter. Cockey called him an unlikely litigant. “He’s a conservative Republican, a fundamentalist Christian and an absolute company man — the classic dedicated law enforcement officer,” Cockey said of his client. In 1994, Knussman and his wife were expecting their first child. Weeks before her due date, his wife was confined to bed rest. Knussman applied for permission to take four to eight weeks’ paid family leave to care for her and, following delivery, the baby. According to Knussman, Jill Mullineaux, a manager in the personnel department, said only birth mothers could qualify as primary caregivers, and secondary caregivers got only 10 days. After the birth of his daughter, his wife’s health problems persisted and Knussman requested extended leave — again denied. He filed a grievance and later contacted the American Civil Liberties Union in Centreville, Md., where Deborah Jeon agreed to take the case. She brought in Cockey and they sued in federal court, claiming that Knussman’s rights under the FMLA and the 14th Amendment’s equal protection clause had been violated. The defendants included the state, the state police and several employees. Following an 11-day trial in 1999, a jury found that Knussman’s benefits had been improperly denied due to his sex, but that all defendants except Mullineaux were entitled to qualified immunity. They awarded him $375,000, and the judge granted the family leave to which he was entitled. Following post-trial motions, the judge threw out the medical leave act verdict and removed all defendants except Mullineaux. On appeal, the 4th U.S. Circuit Court of Appeals affirmed Mullineaux’s liability based on equal protection, but vacated the award as excessive. On remand, rather than retry damages, the parties submitted the matter to Judge Walter Black, who last month awarded $40,000 in damages, $59,000 in expenses and $567,000 in attorney fees, for a total of $666,000. “A good ending would have been that I got the leave up front and they say, ‘We’re sorry. Somebody screwed up,’” Knussman said. Since that possibility had long since passed, “we have to be satisfied with the federal courts holding the state police accountable, and that they’ve done.” LOOKING AHEAD Cockey said lawyers “are only just beginning to perceive the viability of these claims.” The size of Knussman’s jury award reflected the panel’s conviction, he said, that “they don’t want employers making decisions for families. “It takes a little bit of adroit lawyering to combine an FMLA claim” — which doesn’t allow damages for emotional distress — “with a claim that can produce the relief the plaintiff needs.” “These are potentially big cases,” he concluded, “but that’s only gradually being perceived by employment lawyers.”

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