July 31, 2007
"Family-Leave Values" & Parent Discrimination
Posted by Christine Hurt

I'm always a few days behind in reading the NYT Magazine, so I had already seen this post by Frank Pasquale on an article entitled "Do Workers Have a Fundamental Right to Care for Their Families?  The Latest Front in the Job-Discrimination Battle."  That article focuses on a new twist to gender discrimination claims -- claims that center on job termination or other negative treatment because of the worker's parental responsibilities or even mere parental status.  This theory is either used as part of a Title VII claim or an ADA claim (when the child in question has a disability).  Much of the theoretical work for this litigation position comes from the work of a Hastings law professor, Joan Williams, who wrote Unbending Gender in 2000.  That book gave as possibilities several ways to combat the growing tension between parent workers and employers, and one chapter talked of litigation, even though it conceded that "suing your employer is not the ideal mechanism of social change."  In the article, Williams updates her statement by saying that lawsuits "are the worst possible vehicle for social change, ecept for nothing, and that's where we are right now."

Two aspects of the article were very interesting to me.  One was the description of a study by the Cognitive Bias Working Group, which sent over a thousand resumes to both volunteers and real employers.  (The study appears in the May 2007 issue of the American Journal of Sociology.)  The resumes represented equally qualified applicants, but some resumes signalled that the applicant was a parent.  Here are the results:

Among the volunteers, mothers were consistently viewed as less competent and less committed and were held to higher performance and punctuality standards. They were 79 percent less likely to be hired and, if hired, would be offered a starting salary $11,000 lower than nonmothers. Fathers, by contrast, were offered the highest salaries of all. Meanwhile, in the test run with real-world employers, the hypothetical female applicants without children were more than twice as likely as equally qualified mothers to be called back for interviews.

Second, the article notes that "more than half [of these cases] have prevailed in court -- a success rate significantly higher than that of more conventional employment-discrimination cases, which is below 20 percent."  I am assuming that these success rates are of filed cases, so they include dispositions by motions to dismiss, summary judgment, settlment and trials, although I'm not sure.  Let's assume that a parent discrimination case has a much better success rate in front of a jury than a gender discrimination case.  Why would that be?  I can think of a few factors.  While only a certain percentage of jurors may be women, or working women, all have parents and most probably are parents.  So, it would be hard to seat a jury without sympathetic jurors.  Also, one-fourth of these plaintiffs are male, presumably male fathers.  If the Cognitive Bias Work Study Group's work holds up, then jurors would be subject to the same biases as the volunteers/employers and consider the working fathers' claims as credible and important.  They might also consider the lost wages/employment of the working father to be much more in need of a remedy.  Other thoughts?

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