Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.
A trip over to MomsRising.org reveals some frightening statistics about the workplace impact of maternal profiling. It cites one study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences. It cites another study that women without children make 90% as compared to a comparable man, as compared to 73% for women with children and 60% for single moms. It cites one final study that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more.
I've spent a lot of time this year writing about family responsibility discrimination in light of the EEOC's recent enforcement guidance on the subject, and the $2.1 million verdict against Kohl's Department Stores for repeatedly passing over a qualified mom for promotion. Maternal profiling may have been one of the buzzwords of 2007, but it certainly appears that family responsibility discrimination is going to be a key employment issue in 2008 and beyond. Depending on how the political winds blow after the November elections, FMLA expansion, paid sick and parental leave, and incentives for family-friendly work programs will all be in play in 2009.
I am not suggesting that everyone rewrite their leave policies, but those who can afford to be family-friendly will have an advantage in recruiting and retention of employees for whom it is an important benefit (i.e., most people between the ages of 25 and 50). At a minimum you should be building the concept of maternal profiling into your harassment and EEO/diversity training. Discrimination in largely subconscious, and education is the first step towards prevention.
Hat tip to Carrie Kurzon at the New York Employment Lawyer Blog.
2 comments:
The 9th Circuit, in a Dec. 27, 2007, unpublished opinion, held that relying on the fact that an employee is a "mom" to explain why the employee was not promoted, was not evidence of sex stereotpye. The case is Peters v. Shamrock, discussed in Alaska Employment Law blog: http://www.akemplaw.com/wiki/2007/12/27/legal-miscellanea-5/
My read on Peters v. Shamrock is that the court's dismissal of the "mom" comment was severely tempered by the fact that it was made two years prior to the challenged employment decision - and therefore too remote in time to have any probative value to the decision. Had the comment been tied to the decision over which she sued, I wonder if the result would be different.
Also, under the EEOC's guidance on family responsibility discrimination, one would want to analyze the treatment of dads to make out the gender case. In other words, is the discrimination because of parental status (legal) or because of maternal status (unlawful)? If the company treats moms differently because they are moms (out of some antiquated notion of a mother's primary role being to her family, or some other sex-based stereotype), as opposed to treating parents differently because they are parents, then I'm not sure how it is not sex discrimination. The 9th Circuit makes the distinction between mom and parent, but I think drops the ball by not taking the next step and comparing the treatment of female parents to male parents.
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