Working Mothers and Gender Discrimination

Back v. Hastings-On-Hudson Union Free School District (2004)

By Donna Euben

Elana Back, a school psychologist at a New York elementary school, challenged the denial of tenure at the end of her three-year probationary period under Section 1983 of the U.S. Code, which allows state employees to bring actions for violations of the Constitution's Equal Protection Clause. The school alleged that it had terminated Back because she "lacked organizational and interpersonal skills." Back contended, however, that the adverse action was based on her employer's assumption that she could not succeed in her position while being a mother of young children.

She claimed that after returning from a three-month parental leave, her female supervisors made discriminatory comments, including asking how she was "planning on spacing [her] offspring," and suggesting that she "not ... get pregnant until I retire." Back also alleged that her supervisor advised her to "wait until [her son] was in kindergarten to have another child," and expressed concern about Back's ability to work because she had "little ones" at home and it was "not possible for [her] to be a good mother and have this job." The supervisors denied making those comments.

Although the case arose in the context of an elementary school, the Back decision has significant implications for higher education as well.

The ruling: In 2004 the U.S. Court of Appeals for the Second Circuit ruled that the use of motherhood stereotypes of female employees is gender discrimination under the Equal Protection Clause of the 14th Amendment, which prohibits discrimination on the basis of sex in public employment. Disagreeing with part of the lower-court decision, which had granted the employer's motion for summary judgment, the appeals court sent the case back to the lower court for further fact finding and consideration.

The unanimous three-judge decision framed Back's appeal as "one that strikes at the persistent 'fault line between work and family -- precisely where sex-based overgeneralization has been and remains strongest.'" The appeals court found that Back's factual allegations regarding the comments made about "a woman's inability to combine work and motherhood" constituted direct evidence of gender discrimination.

In so ruling, the court appeared to rely on the U.S. Supreme Court's decision in Nevada Department of Human Resources v. Hibbs (2003). In Hibbs, the court ruled that "notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible" constitute gender discrimination. The appeals court found that "it 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.'"

The court emphasized that the question of what constitutes gender-based stereotypes "must be answered in the particular context in which it arises, and without undue formalization." It rejected the school district's argument that Back was required to proffer evidence that similarly situated fathers were treated better. While the court ruled that Back's case "would [have been] stronger" had she offered comparative evidence about men, which she did not, the court stated that such evidence is not "required," since "the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of the different groups within the workplace."

Perhaps her failure to introduce such evidence was because the year Back was hired, 85 percent of the school's teachers were female. The court concluded that a jury could find that the school had stereotyped Back "as a woman and mother of young children, and thus treated her differently than they would have treated a man and father of young children."

Lessons for colleges

  1. Establish formal (and legal) work-and-family institutional policies, in consultation with faculty members, rather than making individual ad hoc arrangements. Provide written policies to all faculty members, regardless of gender.
  2. Provide seminars for department chairmen, chairwomen, and other front-line administrators on relevant work-family laws and campus policies.
  3. Determine clear criteria for promotion and tenure and apply them consistently and fairly to all candidates, including those who have taken family leave and/or "stopped the tenure clock."
  4. Evaluate an individual's ability to perform the essential functions of appointments without consideration of personal traits or conditions.

Donna Euben is former staff counsel for the American Association of University Professors.  The article originally appeared in The Chronicle of Higher Education on May 27, 2005.