Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Stereotyping about the qualities of mothers and their ability to balance work and home is a form of gender discrimination, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. 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 in New York’s Westchester County. 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 in the Southern District. Judge Charles Brieant 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 2nd 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.’” NOT ‘INNOCUOUS’ “These are not the kind of ‘innocuous words’ that we have previously held to be insufficient, as a matter of law, to provide evidence of discriminatory intent,” he wrote. 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. Calabresi disagreed, saying the U.S. 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.” “Defendants are thus wrong in their contention that Back cannot make out a claim that survives summary judgment unless she demonstrates that the defendants treated similarly situated men differently,” he wrote. “Although her case would be stronger had she provided or alleged the existence of such evidence, there is no requirement that such evidence be adduced.” Calabresi wrote that Back “has clearly produced sufficient evidence to defeat summary judgment” in pointing to comments made by the school’s principal, Marilyn Wishnie, and the district’s director of pupil personnel services, Ann Brennan. “Viewing the evidence in the light most favorable to Back, a jury could find that the administrative deficiencies cited by the defendants were minor, and unimportant to the defendants before the development of the purported discriminatory motive,” he said. “As for the parental complaints, it is unclear which of these, Brennan and Wishnie, were aware of at the time of their negative recommendations and evaluations. But Back’s allegations, in any event, are sufficient to allow a jury to find that these complaints were not the real reasons for their proffered criticisms of Back.” The court ruled that Brennan and Wishnie were not shielded from suit by qualified immunity, paving the way for a trial in the case before Brieant. Judges Ralph K. Winter and Robert Katzmann joined in the opinion. Stephen Bergstein of Thornton, Bergstein & Ullrich in Chester represented Back. Joan M. Gilbride of Kaufman, Borgeest & Ryan in Valhalla represented the defendants.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.