chadwick v. wellpoint
TRANSCRIPT
No. 08-1685 _________________
IN THE
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
_________________
LAURIE CHADWICK,
Plaintiff-Appellant, v.
WELLPOINT, INC. AND ANTHEM HEALTH PLANS OF MAINE, INC.,
Defendant-Appellees. __________________________
On Appeal From The United States District Court
for the District of Maine __________________________
BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY
COUNCIL IN SUPPORT OF DEFENDANT-APPELLEES AND IN SUPPORT OF AFFIRMANCE
__________________________
Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC 20005 (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council
CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. Rules 26.1 and 29(c), Amicus Curiae
Equal Employment Advisory Council discloses the following:
1. The Equal Employment Advisory Council has no parent
corporations and no subsidiary corporations.
2. No publicly held company owns 10% or more stock in the
Equal Employment Advisory.
Respectfully submitted,
_____________________________ Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC 20005 (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF THE AMICUS CURIAE ...................................................................1 STATEMENT OF THE CASE..................................................................................2 SUMMARY OF ARGUMENT .................................................................................4 ARGUMENT .............................................................................................................6 I. STANDING ALONE, AN INDIVIDUAL’S STATUS AS A CAREGIVER
WITH FAMILY RESPONSIBILITIES DOES NOT GIVE RISE TO A CAUSE OF ACTION FOR UNLAWFUL DISCRIMINATION UNDER TITLE VII ........................................................................................................6
A. Title VII’s Prohibition Against Sex Discrimination Applies Only to
Discrimination “Because of” Sex..........................................................7
B. In Order To Prevail Under Title VII on a “Sex Stereotyping” Theory of Discrimination, a Caregiver Must Demonstrate That His or Her Employer In Fact Acted Upon Negative, Sex-Based Stereotypical Notions of How Men and Women Should Comport Themselves ......12
II. THIS COURT SHOULD NOT JUDICIALLY EXPAND TITLE VII BY
ADOPTING A MORE EXPANSIVE READING OF THE TERM “SEX” THAN WAS CONTEMPLATED BY CONGRESS .....................................19
CONCLUSION........................................................................................................21 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
FEDERAL CASES
Adamson v. Multi Community Diversified Services, Inc., 514 F.3d 1136 (10th Cir. 2008) ............................................................................7
Back v. Hastings-on-Hudson Union Free School District,
365 F.3d 107 (2d Cir. 2004) .........................................................................15, 16 Coleman v. B-G Maintenance Management of Colorado, Inc.,
108 F.3d 1199 (10th Cir. 1997) ................................................................5, 10, 11 Federal Express Corp. v. Holowecki, ___U.S.___, 128 S. Ct. 1147 (2008) .............8 Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1995),
aff’d on reh’g, 114 F.3d 1332 (2d Cir. 1997) ...........................................5, 10, 11
Fuller v. GTE Corp., 926 F. Supp. 653 (M.D. Tenn. 1996) ....................................15 Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999).......20, 21 Lettieri v. Equant Inc., 478 F.3d 640 (1st Cir. 2007) ..............................................15 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).................................6, 20 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).......................4, 7 O’Neill-Marino v. Omni Hotels Mgmt. Corp., 6 Wage & Hour Cas. 2d (BNA)
1635, 2001 U.S. Dist. LEXIS 2138 (S.D.N.Y. Mar. 1, 2001)............................13 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) .....................................9, 10 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)........................................ passim Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46 (1st Cir. 2000)...........................................................................15, 16
ii
FEDERAL STATUTES
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ...................................................................................8
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq........................................................................... passim 42 U.S.C. § 2000e-2(a)(1) ................................................................................6, 7
FEDERAL LEGISLATION
Ending Discrimination Against Parents Act, S. 1907, 106th Cong. (1999) ............20
STATE STATUTES
Alaska Stat. § 18.80.200 ..........................................................................................20
D.C. Code § 2-1402.11 ............................................................................................20
775 Ill. Comp. Stat. 5/1-102.....................................................................................20
Ky. Rev. Stat. § 344.020 ..........................................................................................20
N.H. Rev. Stat. Ann. § 354-A:6...............................................................................20
N.J. Stat. § 10:5-4.....................................................................................................20
N.Y. Exec. Law § 296..............................................................................................20
43 Pa. Cons. Stat. § 953 ...........................................................................................20
OTHER AUTHORITIES
Equal Employment Opportunity Comm’n., Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (May 23, 2007) .....................................................................................................................8
Ellen Galinsky, et al., Families and Work Institute, 2008 National Study of
Employers (2008)................................................................................................20
iii
Joan C. Williams and Elizabeth S. Westfall, Deconstructing the Maternal Wall:
Strategies for Vindicating the Civil Rights of “Carers” in the Workplace, 13 Duke J. Gender L. & Pol’y 31 (2006) ................................................................18
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The Equal Employment Advisory Council respectfully submits this brief as
amicus curiae with the consent of the parties. The brief urges this Court to affirm
the district court’s decision below and thus supports the position of Defendant-
Appellees WellPoint, Inc. and Anthem Health Plans of Maine, Inc.
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (EEAC) is a nationwide
association of employers organized in 1976 to promote sound approaches to the
elimination of employment discrimination. Its membership includes over 300
major U.S. corporations. EEAC’s directors and officers include many of
industry’s leading experts in the field of equal employment opportunity. Their
combined experience gives EEAC a unique depth of understanding of the practical,
as well as legal, considerations relevant to the proper interpretation and application
of equal employment policies and requirements. EEAC’s members are firmly
committed to the principles of nondiscrimination and equal employment
opportunity.
All of EEAC’s members are employers subject to Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., as well as other equal
employment laws and regulations. As employers, EEAC’s members have a direct
and ongoing interest in the issues presented in this appeal regarding whether, and
under what circumstances, an individual may assert a “caregiver” discrimination
cause of action under Title VII. The district court below correctly ruled that in the
absence of evidence demonstrating a sex-based animus, Title VII does not prohibit
intentional discrimination based solely on an individual’s parental responsibilities
or “caregiver” status.
EEAC seeks to assist the Court by highlighting the impact its decision in this
case will have beyond the immediate concerns of the parties to the case.
Accordingly, this brief brings to the attention of the Court relevant matter that has
not already been brought to its attention by the parties. Because of its experience
in these matters, EEAC is well situated to brief the Court on the relevant concerns
of the business community and the significance of this case to employers.
STATEMENT OF THE CASE
Appellant Laurie Chadwick began her employment with WellPoint, Inc. as a
claims processor in 1997.1 Chadwick v. WellPoint, Inc., No. 07-70-P-H at 4 (D.
Me. February 8, 2008) (Recommended Decision on Defendant’s Motion for
Summary Judgment). She currently is employed by WellPoint as a Recovery
Specialist II, a position she undertook in 1999. Id. She is the mother of triplets
born on June 4, 2000 and a son born on May 20, 1995. Id. at 3-4.
1 Defendant-Appellee Anthem Health Plans of Maine, Inc. is a wholly-owned subsidiary of Anthem Holding Company, L.L.C., which is a wholly-owned subsidiary of WellPoint, Inc., a publicly held corporation. Defendant-Appellees Corporate Disclosure Statement (filed April 23, 2007).
2
In June 2006, Chadwick applied for promotion to the position of Recovery
Specialist Lead. Id. at 4-5. Four other WellPoint employees, all of whom are
women, also applied for the Recovery Specialist Lead position. Id. at 5. The top
two candidates were Chadwick and Donna Ouellette, a mother of two children who
were ages nine and fourteen at the time she applied for the position. Id. Both
women reported to Nanci Miller, who was responsible for making the promotion
decision. Id. Chadwick and Ouellette both were interviewed by Miller, Linda
Brink, their former supervisor, and Dawn Leno, the Director of Recovery. Id. at 5-
7. Based on her relatively superior interview performance, Ouellette was selected
for the promotion over Chadwick. Id. at 9.
Chadwick sued for unlawful sex discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Specifically, she alleged
that she was not selected for the Recovery Lead position because of her status as a
mother of four children. Appellees moved for summary judgment, arguing among
other things that Chadwick failed to show that the promotion denial was based on
sex, or that similarly-situated males were treated more favorably. Id. at 1, 13.
The district court agreed, concluding that Chadwick’s claim essentially
boiled down to one of discrimination based on parental obligations or caregiver
status, which, without more, is not actionable under Title VII. Chadwick v.
WellPoint, Inc., No. 07-70-P-H at 1-2 (D. Me. May 2, 2008). It found that certain
3
comments that Chadwick claimed constituted unlawful sex stereotyping on the part
of WellPoint’s decision makers did not, in fact, reflect “sex-based assumptions or
stereotypes — that Miller believed that a working mother with triplets, a fourth
child, and school would be more overwhelmed than a working father with triplets,
a fourth child, and school.” Id. at 10.
Because Chadwick failed to show that WellPoint “used sex-based
stereotyping about a mother’s child-raising obligations for very young children —
as contrasted with the child-raising obligations of males with very young children
. . . ,” the district court found, she could not proceed with her Title VII sex
discrimination claim. Id. at 2. This appeal ensued.
SUMMARY OF ARGUMENT
An individual’s status as mother, father, or other caregiver with family
responsibilities does not give rise to a cause of action for workplace discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which
prohibits discrimination on the basis of the specifically enumerated characteristics
of race, color religion, sex and national origin. Where caregiver discrimination
based on sex is alleged, the issue that must be resolved is “whether members of
one sex are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998).
4
Although Chadwick alleges that she was denied a promotional opportunity
for which she was qualified because of her status as a mother with school-age
children, it is undisputed that the individual selected for the promotional
opportunity in question also is a mother with school-age children. Chadwick also
has failed to produce any evidence that a similarly situated subgroup of fathers
with school-age children were treated more favorably. See Fisher v. Vassar Coll.,
70 F.3d 1420, 1433 (2d Cir. 1995), aff’d on reh’g, 114 F.3d 1332 (2d Cir. 1997);
see also Coleman v. B-G Maintenance Mgmt. of Colo., Inc., 108 F.3d 1199, 1203
(10th Cir. 1997). Nor has she shown that WellPoint passed her over for promotion
based on negative, sex-based stereotypes it held about working mothers, which
under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), would constitute unlawful sex discrimination.
While Chadwick contends that certain comments made by three women who
were involved in the promotion selection process show that sex stereotyping
played a role in WellPoint’s decision not to promote her, those remarks, which
were gender-neutral, cannot reasonably be said to express such stereotypical
notions about working women. Because Chadwick has failed to demonstrate that
she was discriminated against “because of” sex or based on sex-based stereotypes
about working mothers, summary judgment on her Title VII sex discrimination
claims was proper and the district court’s ruling below thus should be affirmed.
5
EEAC’s member companies are not unmindful of the challenges faced by
working caregivers, and have led the way in developing and implementing
voluntary work-life policies intended to ease their burden, even in the absence of
any legal obligation to do so. Indeed, while some states expressly bar
discrimination against those with parental obligations or other family
responsibilities, federal law does not.
Title VII’s prohibition against discrimination in the “terms, conditions, or
privileges of employment evinces a congressional intent to strike at the entire
spectrum of disparate treatment,” but only with respect to those characteristics
legally protected by it. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)
(citations and internal quotations omitted). To read into Title VII a prohibition
against caregiver status discrimination would extend the law’s protection well
beyond that which was contemplated by Congress.
ARGUMENT
I. STANDING ALONE, AN INDIVIDUAL’S STATUS AS A CAREGIVER WITH FAMILY RESPONSIBILITIES DOES NOT GIVE RISE TO A CAUSE OF ACTION FOR UNLAWFUL DISCRIMINATION UNDER TITLE VII
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,
prohibits employers from discriminating “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
6
2(a)(1). “In passing Title VII, Congress made the simple but momentous
announcement that sex, race, religion, and national origin are not relevant to the
selection, evaluation, or compensation of employees.” Price Waterhouse v.
Hopkins, 490 U.S. 228, 239 (1989) (footnote omitted).
As the U.S. Supreme Court observed in Price Waterhouse v. Hopkins,
however, Title VII “does not purport to limit the other qualities and characteristics
that employers may take into account in making employment decisions.” Id.
Rather, “Title VII eliminates certain bases for distinguishing among employees
while otherwise preserving employers’ freedom of choice.” Id.
A. Title VII’s Prohibition Against Sex Discrimination Applies Only to Discrimination “Because of” Sex
In Title VII sex discrimination cases, the Supreme Court has instructed that
the “critical issue … is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other
sex are not exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998) (internal quotation and citation omitted). “Caregiver,” like “familial,”
status “is not a classification based on sex any more than is being a ‘sibling’ or
‘relative’ generally. It is, by definition, gender neutral.” Adamson v. Multi
Community Diversified Servs., Inc., 514 F.3d 1136, 1148 (10th Cir. 2008).
Because discrimination based on an individual’s status as a family caregiver is not
7
inherently sex-based, it cannot, without more, give rise to a cause of action for sex
discrimination under Title VII.
The U.S. Equal Employment Opportunity Commission (EEOC), which is
the chief federal civil rights agency charged with enforcing Title VII, recently
reaffirmed this basic legal principle. Last year, the agency issued written
enforcement guidance regarding whether, and under what circumstances,
workplace discrimination against individuals with caregiver responsibilities may
be actionable under the federal employment nondiscrimination laws including Title
VII, as well as the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C.
§§ 12101 et seq.2 Equal Employment Opportunity Comm’n., Enforcement
Guidance: Unlawful Disparate Treatment of Workers with Caregiving
Responsibilities 1 (May 23, 2007). In its introductory statement, the EEOC
acknowledges that “federal EEO laws do not prohibit discrimination against
caregivers per se,” emphasizing that the guidance “is not intended to create a new
protected category but rather to illustrate circumstances in which stereotyping or
other forms of disparate treatment may violate Title VII or the prohibition under
2 As the U.S. Supreme Court observed recently, the EEOC’s “policy statements, embodied in its compliance manual and internal directives,” while not necessarily entitled to Chevron deference, do “interpret not only the regulations but also the statute itself…. [and] reflect a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Federal Express Corp. v. Holowecki, ___U.S.___, 128 S. Ct. 1147, 1156 (2008) (quotations and citations omitted).
8
the ADA against discrimination based on a worker’s association with an individual
with a disability.” Id. The agency thus recognizes that in the absence of
persuasive evidence of discriminatory conduct taken because of an individual’s
legally protected status, i.e., sex, claims of caregiver bias on their own simply are
not cognizable under Title VII.
At the center of this dispute, therefore, is the question of whether Chadwick
was discriminated against “because of” sex in violation of Title VII. She has
alleged among other things that in denying her promotion to the Specialist Lead
position, WellPoint improperly was motivated by her status as “a female with three
six year-old children and an eleven year-old child.” Plaintiff’s First Amended
Complaint, at ¶ 17. In other words, she claims that her membership in a subclass
of women protected by Title VII, that is, those who are mothers of school-age
children (or more specifically, mothers of four school-age children and/or mothers
of three school-age triplets and one older, school-age child), formed the basis for
WellPoint’s alleged discriminatory promotion decision.3 Because Chadwick has
failed to produce any evidence that a similarly situated subgroup of fathers with
3 “Sex plus” claims such as Chadwick’s are premised on discrimination based not on a combination of two or more legally protected characteristics, but rather on a single protected characteristic (sex) which, when combined with some other status or behavior (the “plus” factor), allegedly causes an employer to discriminate. The “plus” factor often involves the exercise of some fundamental right, such as the right to marry or to have children. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).
9
school-age children were treated more favorably, however, she has not
demonstrated that she was discriminated against “because of” sex. Accordingly,
the district court was correct to dismiss her action in its entirety.
In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the U.S.
Supreme Court held that an employer violated Title VII when it refused to accept
applications from women who had preschool-age children, while hiring men
without regard to whether they had such children. It concluded that the employer’s
refusal to hire applicants based on their being female plus having preschool-age
children was as unlawful as a refusal to hire based on sex alone. The Court in that
case thus “adopted the proposition that sex considered in conjunction with a
second characteristic—‘sex-plus’—can delineate a ‘protected group’ and can
therefore serve as the basis for a Title VII suit.” Fisher v. Vassar Coll., 70 F.3d
1420, 1433 (2d Cir. 1995), aff’d on reh’g, 114 F.3d 1332 (2d Cir. 1997); see also
Coleman v. B-G Maintenance Mgmt. of Colo., Inc., 108 F.3d 1199, 1203 (10th Cir.
1997) (The Court in Phillips “created a cause of action for ‘gender-plus’
discrimination; that is, Title VII not only forbids discrimination against women in
general, but also discrimination against subclasses of women, such as women with
pre-school-age children”) (citing King v. Trans World Airlines, 738 F.2d. 255 (8th
Cir. 1984); Inda v. United Air Lines, 565 F.2d 554 (9th Cir. 1977); Sprogis v.
United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971)). Accordingly, in order to
10
succeed, a plaintiff alleging “sex-plus” discrimination under Title VII must
demonstrate that “the subclass of women was unfavorably treated as compared to
the corresponding subclass of men.” Coleman, 108 F.3d at 1203. As the district
court concluded below, however, no such evidence exists in this case.
Chadwick has alleged that in passing her over for promotion, WellPoint
unlawfully discriminated against her based on her sex-plus status of being a mother
with four school-age children. Yet it is uncontroverted that the individual selected
for promotion, Donna Ouellette, is a woman who at the time, like Chadwick, had
two school-age children of her own. Try as she may, Chadwick cannot escape the
fact that there exists no evidence that the decision to promote another woman with
school-age children over her was in any way motivated by her gender. Indeed, out
of all of the candidates who were considered for the promotional opportunity in
question, both finalists (i.e., those most favored over all others) – Chadwick and
Ouellette – were members of the same subclass of mothers with school-age
children.4 Furthermore, she has failed to demonstrate that WellPoint treated any
similarly-situated male with school-age children more favorably.
4 In Fisher v. Vassar College, the Second Circuit made an important point with respect to the analogous “plus” factor of marital status. It said that numerous other subcategories – such as those who are “divorced, engaged, seriously involved, never married, etc.” – could “become the object of supposed bias,” and that “as these splintered categories come into play, marital status may become an unmanageable factor for sex-discrimination analysis.” 70 F.3d at 1434. To the extent that Chadwick attempts to differentiate between caregivers of four children
11
Because Chadwick has not shown that WellPoint discriminated against a
subclass of women with school-age children in favor of a subclass of similarly
situated men because of gender, her sex discrimination cause of action necessarily
must fail.
B. In Order To Prevail Under Title VII on a “Sex Stereotyping” Theory of Discrimination, a Caregiver Must Demonstrate That His or Her Employer In Fact Acted Upon Negative, Sex-Based Stereotypical Notions of How Men and Women Should Comport Themselves
In an effort to bolster her sex discrimination claim, Chadwick argues that
WellPoint “unlawfully considered the sex-based stereotype that women, unlike
men, put their responsibilities for rearing young children ahead of their job
responsibilities.” Br. of Appellant, at 2. She contends that there exists a
“commonly held stereotype that the performance of ‘women in the workplace who
have children will suffer because their primary responsibilities for parenting as a
mother will interfere with their responsibilities as an employee,’” and that remarks
made by three women involved in the promotion selection process “conform to
that sex-based stereotype.” Id.
Specifically, Chadwick points out that weeks prior to her interview for the
Recovery Specialist Lead job, Miller, upon learning she had given birth to triplets,
replied, “Oh, my — I did not know you had triplets … Bless you!” Id. at 4. She versus those with two children, or those with triplets versus those without, the same can be said of family or caregiver status.
12
also notes that Brink, reacting to an answer she gave to an interview question
regarding how she would respond to a subordinate’s tardiness, said, “Laurie, you
are a mother. Would you let your kids off the hook that easy, if they made a mess
in [their] room, would you clean it or hold them accountable?” Id. Finally,
Chadwick notes that in explaining her promotion decision, Miller said, “It was
nothing you did or didn’t do. It was just that you’re going to school, you have the
kids and you just have a lot on your plate right now.” Id. at 5.
Chadwick has strung together these unrelated “soundbytes,” see O’Neill-
Marino v. Omni Hotels Mgmt. Corp., 6 Wage & Hour Cas. 2d (BNA) 1635, 2001
U.S. Dist. LEXIS 2138 (S.D.N.Y. Mar. 1, 2001), and offered them up as
conclusive evidence that WellPoint’s decision to promote someone other than her
was based on negative, sex-based stereotypical notions of working women with
young children, which under the U.S. Supreme Court’s decision in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), constitutes unlawful sex
discrimination. In reality, however, the remarks show nothing more than a general
awareness on WellPoint’s part of Chadwick’s status as a mother, which without
more, does not a sex discrimination cause of action make.
In Price Waterhouse, partners in an accounting firm placed a female
partnership candidate on “hold” after concerns were raised that she was “overly
aggressive, unduly harsh, difficult to work with and impatient with staff.” 490
13
U.S. at 235 (citation omitted). While the Supreme Court accepted the district
court’s finding that the firm had not fabricated its concerns about Hopkins’
interpersonal skills, or that it had legitimately emphasized such skills in its
partnership decisions, it nevertheless took issue with the fact that the concerns of
some partners appeared to stem from an “impermissibly cabined view of the proper
behavior of women.” Id. at 236-37.
More specifically, the Court found that statements by some firm partners
reflected an apparent belief that women should not behave in an aggressive
manner, while finding the same behavior in men not only acceptable but desirable,
particularly in partnership candidates. Rejecting this double standard, the Court
observed that “[a]n employer who objects to aggressiveness in women but whose
positions require this trait places women in an intolerable and impermissible catch
22: out of a job if they behave aggressively and out of a job if they do not. Title
VII lifts women out of this bind.” Id. at 251.
Thus, the question in Price Waterhouse was not whether Hopkins was
denied a promotion because she refused to wear makeup or otherwise adopt a more
“feminine” look. Rather, it was whether the firm’s partners “reacted negatively to
her personality because she is a woman.” Id. at 258 (emphasis added). Comments
that Hopkins should take a “course at charm school,” id. at 256, or “walk more
femininely, talk more femininely, dress more femininely, wear make-up, have her
14
hair styled, and wear jewelry’” served as evidence that some partners had just such
a negative reaction. Id. at 235. As the Court noted, “if an employee’s flawed
‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of
lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has
drawn the criticism.” Id. at 256 (footnote omitted).
Several federal courts of appeals, relying on Price Waterhouse, have held
that derogatory remarks about working mothers’ abilities and commitment to their
jobs can be sufficient to support a Title VII sex discrimination cause of action
under a sex stereotyping theory. See, e.g., Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46 (1st Cir. 2000); Back v. Hastings-on-Hudson Union
Free School District, 365 F.3d 107 (2d Cir. 2004); Lettieri v. Equant Inc., 478 F.3d
640 (1st Cir. 2007); Fuller v. GTE Corp., 926 F. Supp. 653 (M.D. Tenn. 1996). In
Back, for instance, the Second Circuit held that “stereotypical remarks about the
incompatibility of motherhood and employment … [and] stereotyping of women as
caregivers can by itself and without more be evidence of an impermissible, sex-
based motive.” Back, 365 F.3d at 122. Among other things, the plaintiff in Back
alleged that her supervisor made several offensive, sex stereotyping comments
suggesting, for instance, that the plaintiff should plan on “spacing [her] offspring”
and should wait until the supervisor retires before having more children, and
15
questioning whether the plaintiff could be successful both on the job and at home.
Id. at 115.
Writing for a unanimous, three-judge panel, Second Circuit Judge Guido
Calabresi said Price Waterhouse establishes that “stereotyped remarks can
certainly be evidence that gender played a part” in an adverse employment
decision. Id. at 119 (citing Price Waterhouse at 251). He observed that the
“crucial question” as to “[w]hat constitutes a ‘gender stereotype?’” must be
answered on a case-by-case basis, but that the answer before the court was clear.
Id. at 119-120. In his words:
[I]t 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.”
Id. at 120. Similarly, Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d
46 (1st Cir. 2000), the plaintiff claimed that her employer fired her from a high-
level executive position after learning that she planned to have more children. She
presented evidence that the employer’s vice president told her it was “‘nothing
personal’” but that he “preferred unmarried, childless women because they would
give 150% to the job.” 217 F.3d at 51. Rejecting the employer’s argument that
these were merely stray remarks, this Court concluded that the plaintiff was
entitled to a jury trial on the issue of sex-based discrimination.
16
At the core of these cases are negative, sex-based stereotypes about
women’s roles as primary family caregivers and the assumption that their work
responsibilities will come second to their responsibilities at home. Simply put, the
remarks upon which Chadwick relies so heavily cannot reasonably be said to
express such stereotypical notions about working women. Despite having
described the Back facts as “strikingly similar to those here,” Br. of Appellant, at
37, plainly there is no comparison. Not only are two of the three remarks gender-
neutral on their face, and could easily have been said to a similarly situated man,
the third comment, in which Brink compared child discipline to discipline in the
workplace, involves an analogy that applies equally to mothers as well as fathers.
Simply because Brink’s reaction to Chadwick’s response referenced Chadwick’s
status as a mother (as opposed to a father, because that she is not) does not
automatically transform it into a sex-based inquiry wrought, as Chadwick
contends, with impermissible sex-based stereotypes.
In addition, all of the statements were made by women, also strongly
suggesting that sex was not a factor. Chadwick also conveniently downplays the
fact that Donna Ouellette, who was selected over her for promotion, is a woman.
Indeed, Chadwick provides no explanation as to why Ouellette, who herself is the
mother of school-age children, was not also denied the position due to unlawful
sex stereotyping based on her own family responsibilities.
17
Chadwick characterizes this as a “classic case of maternal wall
discrimination.” Br. of Appellant, at 20. As that term has been described by
experts in the field, “maternal wall” discrimination manifests itself typically after a
woman becomes, or expresses an interest in becoming, a mother. See Joan C.
Williams and Elizabeth S. Westfall, Deconstructing the Maternal Wall: Strategies
for Vindicating the Civil Rights of “Carers” in the Workplace, 13 Duke J. Gender
L. & Pol’y 31 (2006) (“Women run up against the maternal wall when they are
discriminated against in the workplace because of past, present or future
pregnancies or because they have taken one or more maternity leaves. Women
also may experience discrimination when they adopt part-time or flexible work
schedules”). Chadwick, however, never hit a maternal wall at WellPoint. She
was, by her own admission, a well-regarded employee with an “excellent
employment record.” Br. of Appellant, at 10. In fact, Chadwick was the mother of
a two year old at the time she began her employment with WellPoint in 1997. Id.
Five years later, while continuing to work for WellPoint, she expanded her family,
giving birth to triplets. Id.
There is no suggestion whatsoever that Chadwick ever was subjected to sex-
based stereotypes about working mothers in the nine years preceding her pursuit of
the Recovery Specialist Lead position in 2006. It strains credulity to suggest that
after nine admittedly successfully years free from sex-based stereotypes, Chadwick
18
suddenly would be judged unsuitable for promotion by her female supervisors
because she is a mother with school-age children, especially in view of the fact that
the successful candidate herself is a mother with school-age children.
The Price Waterhouse Court, which was careful to note that its decision did
not “traverse new ground,” 490 U.S. at 248, made clear that “sex stereotypes” do
not “inevitably prove that gender played a part in a particular employment
decision,” but rather the plaintiff must show that the employer “actually relied on
[the person’s] gender in making its decision.” Id. at 251.5 Because Chadwick
failed in making such a showing, she was not entitled to pursue her sex
discrimination claim.
II. THIS COURT SHOULD NOT JUDICIALLY EXPAND TITLE VII BY ADOPTING A MORE EXPANSIVE READING OF THE TERM “SEX” THAN WAS CONTEMPLATED BY CONGRESS
EEAC’s member companies are mindful of the difficulties faced by those
who seek to balance work and family responsibilities. Indeed, private sector
employers have been leading the way with respect to the development and
implementation of flexible work and other policies intended to ease the burden of
working caregivers, even in the absence of any legal obligation to do so. See, e.g.
5 Indeed, Justice Kennedy, joined by Justice Scalia and then Chief Justice Rehnquist, made the same point even more bluntly in his dissenting opinion, writing that while sexual stereotypes might be “relevant to the question of discriminatory intent,” “Title VII creates no independent cause of action for sex stereotyping.” Id. at 294. (Kennedy, J., dissenting).
19
Ellen Galinsky, et al., Families and Work Institute, 2008 National Study of
Employers (2008)6.
Although a number of states (not including Maine) expressly ban
employment discrimination based on “parenthood,”7 “familial status,”8 “family
responsibilities,”9 and/or “marital status,”10 as noted above, federal law currently
does not contain such a prohibition. And while federal legislation to “prohibit
employment discrimination against parents and those with parental
responsibilities” was introduced in the 106th Congress in 1999,11 the bill failed,
and no similar legislation has been introduced in Congress since that time.
Title VII’s prohibition against discrimination in the “‘terms, conditions, or
privileges of employment’ evinces a congressional intent to strike at the entire
spectrum of disparate treatment . . . ,” but only with respect to those characteristics
legally protected by it. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)
(citations and internal quotations omitted). This Court has recognized that its role
is “to construe [Title VII] as glossed by the Supreme Court, not to make a moral
judgment.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st
6 available at http://familiesandwork.org/site/research/reports/2008nse.pdf7 Alaska Stat. § 18.80.200 8 See, e.g., Ky. Rev. Stat. § 344.020; N.J. Stat. § 10:5-4; 43 Pa. Cons. Stat. § 953 9 D.C. Code § 2-1402.11 10 See, e.g., 775 Ill. Comp. Stat. 5/1-102; N.H. Rev. Stat. Ann. § 354-A:6; N.Y. Exec. Law § 296 11 Ending Discrimination Against Parents Act, S. 1907, 106th Cong. (1999)
20
Cir. 1999). To read into Title VII a prohibition against caregiver status
discrimination, without more, would extend the law’s protection beyond
intentional discrimination “because of” sex to unmanageably broad protection of
workers in matters that Title VII was never intended to reach. If Congress deems it
necessary and appropriate to protect caregivers in the workplace, it can do so
through the legislative process, without distorting Title VII’s meaning and intent as
it currently exists or upending Price Waterhouse’s sound interpretation of it.
CONCLUSION
For the reasons set forth above, the amicus curiae Equal Employment
Advisory Council respectfully submits that the decision below should be affirmed.
______________________________ Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC 20005 (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council
21
Form 6. Certificate of Compliance With Rule 32(a)
Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: _X_ this brief contains 4,917 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or __ this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: _X_ this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 in Times New Roman 14, or __ this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style]. (s)______________________________ Attorney for Amicus Curiae Equal Employment Advisory Council Dated: September 26, 2008
CERTIFICATE OF SERVICE
This is to certify that two true and correct copies of the Brief Amicus Curiae
of the Equal Employment Advisory Council in Support of Defendant-Appellees
and in Support of Affirmance were served on September 26, 2008 by United States
Priority Mail, postage prepaid, on the following counsel of record:
David G. Webbert, Esq. Elizabeth L.J. Burnett, Esq. Matthew Sherburne Keegan, Esq. JOHNSON & WEBBERT 160 Capitol Street, Suite 3 P.O. Box 79 Augusta, ME 04332-0079 (207) 623-5110 Margaret Coughlin LePage, Esq. William P. Saxe, Esq. PIERCE ATWOOD LLP One Monument Square Portland, ME 04101-1110 (207) 791–1100 _________________________
Rae T. Vann