Working for Justice

The Motherhood Penalty a.k.a Caregiver or Family Responsibilities Discrimination

In a 2007 study, Cornell sociologists Correll, Benard, and Paik examined the motherhood penalty, a phrase sociologists use to describe the systemic disadvantages that working mothers often encounter in hiring, pay, promotion, and other aspects of their employment. In the United States, mothers suffer a per-child wage penalty of approximately 5%, controlling for similar qualifications and work performance. In their study, Correll, Benard, and Paik tested the hypothesis that this penalty is at least partially due to biased cultural perceptions that the motherhood role exists in tension with the “ideal worker” role, which cause employers to believe that mothers are or will be less committed to their jobs. The study tested this hypothesis through a laboratory experiment, in which undergraduate students chose how much to pay job applicants if they were employers, and an audit, where the researchers sent fake resumes to actual employers. For both of these experiments, the qualifications as presented in resumes and fact sheets were identical for the prospective applicants, except for references to parent activities as an indication of whether the applicant had children. In the laboratory experiment, participants were almost half as likely to recommend mothers for hire as non-mothers and offered mothers an average of $11,000 less than non-mothers, and $13,000 less than fathers. In the audit with actual employers, mothers were also half as likely to be called back for interviews as non-mothers.

Based on the study described above and given the possibility that actual employers may hold biases against mothers, how does the law help to prevent such discrimination? In 2007, the EEOC issued an Enforcement Guidance on caregiver discrimination, providing useful insight into how a plaintiff may base a sex discrimination claim on evidence of gender stereotyping under Title VII without pointing to comparators (i.e. similarly-situated employees who were not in plaintiff’s protected class and were treated better than him or her). Caregiver or Family Responsibilities discrimination (FRD) most commonly occurs against women who are pregnant or have children, but it can also include discrimination against fathers and workers with other family caregiving responsibilities. The EEOC Enforcement Guidance describes that the laws have been changing to better accommodate the implicit bias that Correll, Benard, and Paik attempt to illuminate in their study.

An oft-cited case is Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) , where the Second Circuit found that “stereotypical remarks about the incompatibility of motherhood and employment ‘can certainly be evidence that gender played a part’ in an employment decision.” In Plaetzer v. Borton Auto., Inc., Civ. No. 02-3089, 2004 WL 2066770, at *16 n.3 (D. Minn. Aug. 13, 2004), the district court stated gender stereotypes or “where an employer’s objection to an employee’s parental duties is actually a veiled assertion that mothers, because they are women, are insufficiently devoted to work, or that work and motherhood are incompatible [] is properly addressed under Title VII.”

Under current laws concerning caregiver and family responsibilities discrimination, employers may be held liable for implicit or unconscious biases. Take for example a supervisor who notes an employee, who is a mother, is late to a meeting and assumes she is tardy due to her childcare responsibilities, rather than a work-related reason or traffic (the EEOC Enforcement Guidance describes this as “attribution bias”). If the supervisor remembers this one incident and forgets numerous times a male employee is late to meetings (“recall bias”) and later promotes the male employee over the female, an investigator may infer that the denial of a promotion was based on implicit bias and sex discrimination. The supervisor may conclude this even if the supervisor states that he or she believes the male employee was more dependable and the promotion was based on his or her experience with working with both employees. In addition, even what may seem subtle disadvantages against mothers within the workplace, such as basing promotions on the ability to relocate or bill more hours or have a less flexible schedule, can serve as neutral policies or practices that have a disparate impact on women.

Many state and local governments, including D.C. and Alaska, include “family responsibilities,” “familial status,” or “parenthood” as a protected category in their laws against employment discrimination. It is comforting to know that the law is moving away from comparator-based evidence, which is at times difficult to obtain, in cases of gender stereotyping and including variations of discrimination that extend beyond the “sex” and “sex-plus” labels. Nevertheless, despite the growing strength of Title VII laws to prevent caregiver discrimination and FRD, both employers and employees alike should take an active stance in closing the wage gap for both women and women with children, and eliminating the motherhood penalty. The stigma against working moms, and the inevitable consequences on their job experience and opportunities, has no place in our progressively equal society. If we are to attain true equality, working moms (like working dads) should be applauded not stigmatized for their contributions.

For more information on FRD and employer best practices, visit https://www.eeoc.gov/policy/docs/caregiver-best-practices.html.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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