Did rejection of applicant because she might have children constitute sex discrimination?


Patricia, a recent business school graduate, was interviewed for a position as a marketing assistant for a public relations firm. During the interview, Bob, the manager of the department with the job vacancy, noticed her wedding ring and asked, "How many kids do you have?" When Patricia replied that she had no children yet but that she planned to once she and her husband had gotten their careers underway, Bob explained that the duties of a marketing assistant were very demanding and, rather than discuss Patricia's qualifications, he asked how she would balance work and childcare responsibilities when the need arose. Patricia explained that she would share childcare responsibilities with her husband, but Bob responded that men are not reliable caregivers. Bob later told his secretary that he was concerned about hiring a young, married woman — he thought she might have kids, and he didn't believe that being a mother was "compatible with a fast-paced business environment." A week after the interview, Patricia was notified that she was not hired. Believing that she was well qualified and that the interviewer's questions reflected gender bias, Patricia filed a sex discrimination charge with the EEOC. Is she right?


In this situation, it appears that the decision to not select Patricia may have been made based on a stereotyped assumption about a woman’s caregiving responsibilities. Relying on stereotypes of traditional gender roles and the division of domestic and workplace responsibilities, some employers may assume that childcare responsibilities will make female employees less dependable than male employees, even if a female worker is not pregnant.

Here, an investigation revealed that the employer reposted the position after rejecting Patricia for the job. The employer said the position was reposted because it was not satisfied with the experience level of the applicants in the first round. However, the investigation showed that Patricia easily met the requirements for the position and had as much experience as some other individuals recently hired as marketing assistants. Under the circumstances, the investigator determined that the employer rejected Patricia from the first round of hiring because of sex-based stereotypes, a violation of Title VII of the Civil Rights Act of 1964.

While the federal EEO laws do not prohibit discrimination against caregivers per se, the EEOC has described circumstances where discrimination against caregivers might constitute unlawful disparate treatment under Title VII. Employers may be liable if workers with caregiving responsibilities are subjected to offensive comments or other harassment because of race, sex (including pregnancy), or another protected characteristic, and the conduct is sufficiently severe or pervasive to create a hostile work environment. The same legal standards that apply to other forms of harassment prohibited by the EEO statutes also apply to unlawful harassment directed at caregivers or pregnant workers.

Source: EEOC Guidance: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” reported in Employment Practices Guide, New Developments ¶5243.

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