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  4. Written Testimony of Joan C. Williams Professor of Law UC Hastings Foundation Chair Director, Center for WorkLife Law

Written Testimony of Joan C. Williams Professor of Law UC Hastings Foundation Chair Director, Center for WorkLife Law

Meeting of February 15,  2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities

Good morning, Madam Chair, Commissioners Ishimaru, Barker, Feldblum, and Lipnic. Thank you for the opportunity to participate in this meeting today. My name is Joan C. Williams. I am a law professor and Founding Director of the Center for WorkLife Law at the University of California, Hastings College of the Law. I am the author or co-author of six books and over sixty law review articles and (with Cynthia Thomas Calvert and Gary Phelan) am currently writing a treatise, titled Family Responsibilities Discrimination, for the Bureau of National Affairs on caregiver discrimination. I have written extensively on work-life balance, the "maternal wall" (discrimination against mothers), and caregiver discrimination.

The EEOC needs to act now. Women will never achieve equality until mothers do, and mothers will never achieve equality while pregnancy and caregiver discrimination remain widespread and startlingly open. Far too frequently, gender discrimination jeopardizes not only women's careers, but also the economic stability of the families that depend on their paychecks. Workplace discrimination results in a loss of talent and training that has sharply negative economic consequences. In a rapidly globalizing world, the United States can no longer afford to train women, and then push them out of their jobs and careers after they have children. The time has come to level the playing field for mothers—and to create conditions where fathers can play a more active role in family care.

The Way Forward: Next Steps on Addressing Pregnancy and Caregiver Discrimination

Today I discuss "The Way Forward," recommending next steps on pregnancy and caregiver discrimination. The EEOC's 2007 Enforcement Guidance on Caregiver Discrimination had a positive effect, particularly in giving guidance to EEOC investigators and to defense lawyers on the need to advise clients on how to avoid the sharp increase in lawsuits alleging caregiver discrimination.2 The Center for WorkLife Law has documented a nearly 400% increase in caregiver discrimination suits filed between 1999 and 2008 over the previous decade, and that this type of litigation has a sharply higher success rate than do most other kinds of employment discrimination suits. Social science studies show why.3 Maternal wall bias against mothers is an order of magnitude larger than glass ceiling bias against women in general. The most famous study found that when subjects were given identical resumes, one but not the other a mother, the mother was 79% less likely to be hired, 100% less likely to be promoted, offered an average of $11,000 less in salary, and held to higher performance and punctuality standards.4

I join the National Partnership in urging the Administration to appoint a multi-agency task force to address issues related to discrimination against pregnant women and caregivers.

It would also be very beneficial for the EEOC to begin collecting data not only on pregnancy discrimination cases (which it currently does) but also on the larger universe of cases involving caregiver discrimination. Greater data collection would improve knowledge of other types of cases involving discrimination against caregivers, which historically have been harder for employers, employees, and their lawyers to recognize.

I will spend the bulk of my time discussing in greater detail three additional steps:

  1. A more active role in educating employers and their lawyers about caregiver discrimination law.
  2. Additional Guidance to clarify that the interaction between the Pregnancy Discrimination Act and the 2008 Amendments to the Americans with Disabilities Act ("ADAAA") means that pregnant women now have greater workplace protections than most employers currently recognize.
  3. Additional Guidance to affirm the importance of stereotyping evidence and to correct misimpressions among investigators and employment lawyers caused by some courts' over-reliance on, and misuse of, comparator evidence.

1. The Urgent Need for Further Outreach to Employers and Their Lawyers

The 2007 Guidance was an important first step in beginning to educate not only EEOC investigators, but also employers and their lawyers that discrimination against pregnant women and mothers is gender discrimination prohibited by Title VII.5 Nonetheless, outreach to both employers and their lawyers needs to be improved, as evidenced by the blatant nature of the problems that continue to be experienced by pregnant women and adults—men as well as women—with caregiving responsibilities. In my discussions with members of the employment bar in preparation for this testimony, both defense and plaintiffs' lawyers expressed the view that many employers still are ill-informed about recent developments in the law prohibiting discrimination against caregivers.

For over a decade, WorkLife Law has run a hotline for caregiver discrimination claims, or "family responsibilities discrimination" claims, as we call them. In addition, we maintain a comprehensive case database that, to the best of our ability, includes every caregiver-discrimination case ever decided—almost 3,000 cases. Both Hotline calls and the case law database confirm the common sentiment that for employers, and their lawyers, public education about caregiver discrimination law is urgently needed.

Typical calls. Here are some typical calls:

  • A mother was given less client contact and work because of her family responsibilities. When she announced her second pregnancy, she was fired. (This common pattern of discrimination is widely reported by plaintiffs' employment lawyers).6
  • Caller was fired when she was eight months pregnant and told her job was being transferred to another town. Caller was not asked to relocate or invited to apply for other positions that were open for which she was qualified. She was the only person on her team to be let go—and the person with the most job experience.
  • Caller's new supervisor was no longer scheduling her according to her availability due to her child care constraints, but continued to accommodate the scheduling needs of other employees, including students.
  • Mother was ready to return from maternity leave and contacted her employer about her schedule. Her employer refused to accommodate her schedule restrictions due to daycare, but accommodated other employees who attend school and have second jobs.
  • New mother was denied a promotion although her entire team was promoted.

    Egregious calls. Here are some of the more egregious cases callers have reported:
  • Caller took intermittent FMLA leave to care for his wife. After informing his employer that his wife would be going on long-term disability, his new supervisor told Caller that he must be in the office from 8am-5pm and that he could no longer flex, telecommute, or work from home – despite the fact that employer permitted and even encouraged all similarly situated employees to flex and telecommute. Caller had been telecommuting, working from home, and flexing his hours for 15 years with no detriment to his performance.
  • Caller's boss announced he was closing the office because of the poor economy. Later he told her he found another property a few blocks away and was looking for someone who didn't have other obligations. Caller and her co-worker, both mothers, were not considered for the position.
  • A pregnant employee was not permitted to alter her uniform to accommodate her pregnancy. Instead, she was required to take FMLA leave when she could no longer wear the uniform – despite the fact she had no physical limitations. Her FMLA leave will expire before she delivers her child.
  • Civil servant's employer offers no light duty except for on-the-job injuries and permits only seven months' leave with job protection. When caller became pregnant, she was forced to take medical leave immediately; her leave will expire before her baby is born.

    "Kill it." Perhaps the most shocking type of caregiver discrimination shows up both on the Hotline and in the case law: situations in which women are given a choice between getting an abortion and losing their jobs.7
  • A delivery driver informed her employer she was pregnant. Within one hour she was placed on involuntary and unpaid medical leave because the employer thought she could not do her job. She was three months pregnant and her only restriction was that she couldn't lift more than 20 pounds. Her employer told her she would lose her medical benefits within 12 weeks of going on leave. She applied for another position with the same employer at a thrift store, but the employer's human resource manager decided based on a phone call that she could not do the job. Employee's doctor called to say she could work. Employee received unemployment benefits, which the company unsuccessfully appealed. Despite strong religious convictions, the employee decided she needed to get an abortion so she could remain employed and feed her two small children. When she discovered she was carrying twins, she decided not to have the abortion. She was visiting family when her employer sent a letter demanding a response in 48 hours or they would assume she had resigned. She returned home and pleaded for work in any capacity so she could feed her children. Two weeks later, she was terminated.8
  • A sales clerk was about to be promoted when she became pregnant. Her supervisor advised her to get an abortion and offered to pay for it and to drive her to the clinic. When she did not get an abortion, the supervisor allegedly threatened to push her down the stairs and also made her do more lifting than she had when not pregnant. Another pregnant employee was treated the same way.9
  • An employee who had been working at Wendy's for four years notified her employer she was pregnant with her second child. According to the plaintiff's allegations at summary judgment, her supervisor encouraged her to have an abortion and belittled the employee by telling her to "take your fat pregnant ass home" whenever they disagreed. The employee experienced pregnancy related illness and requested leave and went home after receiving permission from her shift manager. Her supervisor retaliated by falsely writing up the employee for not getting permission to leave and changing her work schedule for the next day without giving her notice. While taking her ill son to the pediatrician's office, the employee received several hostile phone calls from her supervisor telling her to get her "pregnant ass" to work or she would be fired. On her way to work, her supervisor told her they found coverage and she need not show up but wrote employee up for a "no call, no show." After the supervisor stated, "I know you're pregnant, and maybe you should just stay your pregnant ass home because I'm not going to deal with this bullshit anymore," the employee was afraid that if she took anymore sick leave she would lose her job and worked full shifts the following 3 days despite feeling sick. The employee miscarried and tried to contact her supervisor through numerous phone calls, but was unable to reach her. Her supervisor terminated her because of her attempts to take time off of work.10
  • A medical biller became pregnant. According to the plaintiff's allegations at summary judgment, no one told her about her pregnancy disability leave rights and her employer AMS had no policies to provide that information. She had difficulty with her pregnancy because of a uterine tumor. The business owner called her and said that she could solve her high-risk pregnancy problems by having an abortion, and that there were ways of getting away with things without telling husbands and boyfriends. The conversation upset her, partly because of her religious beliefs. She kept missing work because of her pregnancy. AMS reduced her hours and also stopped her medical insurance. She was terminated for absences, tardiness, insubordination, and misconduct.11
  • A cook was repeatedly subjected to national origin discrimination. In addition, when her employer found out she was pregnant she was demoted from cook to dietary aide. The employer began to pressure the employee to have an abortion. She decided to have the abortion and the employer began to treat her nicely, but when she went to the clinic she decided she could not carry through and did not have the abortion. When the employee tried to report these incidents, the administrator tried to help, but was not effective. The employee was not put on schedule and thought she had been fired, so she did not report to work. She was fired when her employer alleged she had abandoned her job.12
  • Several female firefighters in Washington D.C. were required to take pregnancy tests, and test negative, to be hired. If a firefighter got pregnant in her first year, her job was in jeopardy. Plaintiffs are three women who had abortions so that they would not lose their jobs.13

    These cases are only the most obvious signal that something is truly wrong in the American workplace when it comes to the treatment of pregnant women and mothers on the job. Many women need to work, and are given a choice that violates their basic constitutional right to control over their own decisions concerning reproduction.14 As troubling as it is to say it, a clear statement from the EEOC that employers cannot insist that a woman have an abortion in order to keep her job would be a real step forward in a country where family values have played such an important role in the national discourse.

    Caregiver bias against men.15 Another arena where employers, courts, and lawyers are very confused concerns caregiver discrimination against men. Most such cases now are brought under the Family and Medical Leave Act, presumably because of lawyers' and courts' lack of understanding that men who are discriminated against because they play an active role in family care may well have also a cause of action under Title VII.
  • An airline maintenance parts foreman sought intermittent FMLA leave to care for his newborn; he was told to let his wife care for the baby because he "had a shop to run."16
  • A police officer who had taken FMLA leave for the birth of each of his three children was passed over for promotions multiple times. Supervisors regularly derided him in front of his peers, including the comment, "Congratulations for taking the most time off for having a baby and not actually having the baby."17
  • An accountant who asked for FMLA leave for the birth of his child was told he did not have the same rights as women did and that he could not take leave if his employer was "really busy."18
  • When an equipment operator requested FMLA leave to care for his wife, step-daughter, and son, all of whom developed serious medical conditions, his supervisor asked why the mother or "real" father of the step-daughter could not take care of the kids.19
  • A lumber company management trainee requested FMLA leave to take care of his sick father. His employer told him "he would be cutting his own throat" if he took the leave. He was fired when he took the leave.20
  • A cashier who took FMLA leave to care for children during his wife's high risk pregnancy was penalized and characterized as "not reliable."21
  • A systems support technician who took FMLA leave to care for his father, who was ill with cancer, was told repeatedly by supervisor "you're killing us."22
  • A police sergeant who took two months FMLA leave to care for his newborn was denied a promotion. A supervisor commented, "Who the hell does [he] think he is that he can just go on this FMLA leave and leave us shorthanded."23
  • An aircraft mechanic was disciplined and ultimately fired for "lack of dependability" after using FMLA leave to care for his pregnant wife, who suffered from gestational diabetes.24
  • A store operations manager's supervisor said he had "lost confidence" in the worker after he took a week of paternity leave during a particularly busy time, during inventory.25
  • A carpenter on FMLA leave to care for his father, who had had a heart attack, was told that "no one wanted to work with him" and was terminated.26
  • A divorced father of three, including a son with hemophilia, was told that he needed to decide which was more important, his job or his family, after he took multiple FMLA leaves to care for his son.27

Light duty. Denial of light duty is to women what high school education requirements were to African-Americans in the 1970s. Sometimes this is all too obvious. Stansfield v. O'Reilly Auto., Inc., 2006 U.S. Dist. LEXIS 31640 (S.D. Tex. 2006) involved an employer who, when he found out the plaintiff was pregnant, threw up his hands and said "What are we going to do now?" Id. at *7. At this particular workplace, women were encouraged to get men's help when lifting heavy objects. Yet once the plaintiff got pregnant, she was told she could no longer seek such help. When she brought in a note from her doctor limiting her lifting to 20 pounds, her employer first asked her, "what was the weight I told you?", and then, "after some indecision" (said the court) decided that her job required her to lift 50 pounds. Id. at *8.

Sometimes employers are more subtle. As alleged in the Plaintiffs' Opposition to Summary Judgment in Lochren v. Suffolk, 2004 WL 5517505 (E.D.N.Y. 2004), a police department routinely staffed desk and other light duty positions with officers who could not perform "full police duties." It grandfathered in 36 male officers who had been on light duty for years. But light duty was not available to pregnant women: they were given the option of going on leave or remaining on patrol without bulletproof vests and gun belts (the department did not provide either in sizes suitable for late-term pregnant women). A nearby police department refused to grant light duty to pregnant women despite the fact that they were operating under an identical county policy to the one struck down in Lochren.28

Some employers insist on limiting pregnant employees to light duty even when the employee herself insists she is ready, willing, and able to do her regular job. An example is Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999), where a firefighter was promptly removed from her job after she announced her pregnancy, and her request for a return to full duty was ignored. This kind of discrimination, which limits women's ability to work when pregnant because of prescriptive stereotypes about how pregnant woman should behave, was declared illegal in the 1970s.29 Yet "one of the biggest complaints from female sworn officers is that when they notify their department that they are pregnant, they are removed from their position."30

Women regularly win light duty cases when the plaintiff can show that light duty requirements were trumped up or applied unequally to men and women. Yet most of the cases involve situations where employers offer light duty only to workers injured on the job, and these cases women typically lose on the grounds that the Pregnancy Discrimination Act does not require that pregnant women be given special "preferential treatment."31 (The WorkLife Law database has over 100 cases involving light duty. That is almost certainly an undercount, because we did not code for this.32)

This analysis is unconvincing. The Pregnancy Discrimination Act requires that pregnant women be treated "the same" as other workers with a similar ability or inability to work. The statute thus defines "similarly situated" in terms of "ability or inability to work," not in terms of "place of injury."33 "It is the incapacity that makes a comparator 'similar' to a pregnant woman, not the location where the incapacity arose."34 In addition, to the extent that a pregnant woman's accommodation is not directly required by the ADAAA, it may be required by the PDA if another worker has been accommodated due to ADAAA requirements, given the PDA's mandate that pregnant workers be treated the same as others with a similar ability or inability to work.

The bottom line is that employers' contention that they can exclude pregnant women because they prefer to accommodate only people with on-the-job injuries is not in compliance, by and large, either with the ADAAA or with the PDA. The fact that employers prefer to cover only employees with on-the-job injuries because that keeps their worker's compensation costs down is understandable.35 It is also irrelevant to the issue of whether pregnant workers have rights under federal law.

Urgent need for public outreach. These cases and calls highlight the need for the EEOC to undertake an intensive public education effort to reach out to employers and their lawyers to explain what constitutes illegal caregiver discrimination against pregnant women, mothers, and men.

2. Guidance is Needed to Clarify that Pregnant Women and Caregivers Now Have Far Greater Workplace Rights than Most Employers Recognize Under the ADAAA and the Patient Protection and Affordable Care Act

Pregnant women and new mothers have many new workplace rights due to two new laws: the ADAAA and the Patient Protection and Affordable Care Act. The new statutes give pregnant women and mothers the rights to accommodations of pregnancy and breastfeeding they lacked in the past.

As the result of these laws, the following plaintiffs (who lost suits brought under the Pregnancy Discrimination Act, then the only available cause of action) might well have the right to reasonable accommodations today:

  • A pregnant woman with inappropriate sinus tachychardia, a type of cardiac arrhythmia, lost her job because her employer refused to accommodate, saying she was "a heart attack waiting to happen."36
  • A pregnant woman ordered not to stand for more than six hours without a break.37
  • A pregnant woman ordered not to enter the paint shop.38
  • A pregnant woman with severe morning sickness needed a schedule accommodation.39
  • A pregnant sales associate was denied permission to carry a water bottle, which she needed due to pregnancy-related urinary tract and bladder infections.40
  • A rural mail carrier needed various accommodations due the interaction between her pregnancy and her pre-existing hypertension.41

Each of these women could have continued working. Most required only a modest workplace accommodation in order to do so. Yet none was entitled to accommodations under the pre-2008 ADA. Because most pregnancy-related conditions did not qualify as "impairments," most pregnant women were not eligible for the reasonable accommodations they needed to enable them to continue working throughout pregnancy.

A. Specific Guidance is Needed to Clarify that a Broad Range of Pregnancy Conditions May Be Impairments under the ADAAA.

Pregnancy is not a disability. Some women have completely healthy pregnancies that allow them to continue working as they did before they were pregnant, right up to the time they deliver the baby. But many, many women encounter pregnancy conditions that require workplace restrictions.

Most restrictions imposed on pregnant women result when a woman reports a symptom that the doctor interprets as a risk to the woman or her ability to deliver a healthy full-term child. Common temporary pregnancy restrictions include (but are not limited to): lifting restrictions, restrictions on the amount of time a worker can stand in a given day or how long she can stand without taking a short break, restrictions that limit exposure to toxins, restrictions that require access to drinking water or bathrooms (due to an increased susceptibility to urinary tract infections, severe nausea, pressure on the bladder), and restrictions on overwork and other scheduling restrictions, including (for some) periods of bed rest.

These restrictions differ dramatically in terms of how long they last. Some last as little as a week or two, while others last several months or more. Some are aimed at protecting the mother, notably lifting restrictions, which typically stem from pregnant women's softening joints and increased vulnerability to back injury. Other restrictions are aimed at protecting the mother's ability to deliver a healthy baby by minimizing the chance of miscarriage or pre-term birth, notably exposure to toxins and overwork.

A key reason complications of pregnancy did not qualify as "impairments" under the pre-2008 ADA is that the Appendix to the regulations expressly stated "conditions, such as pregnancy, that are not the result of a physiological disorder are not an impairment." 42 Moreover, the pre-2008 (ADAAA) Appendix to the regulations stated that "temporary, non-chronic impairments of short duration, with little or no long term impact, are usually not disabilities."43

The new ADAAA and its regulations greatly expand the potential for temporary conditions to qualify as impairments if they substantially limit a major life activity. Guidance is needed to clarify the range of temporary pregnancy-related conditions which may now qualify as impairments.

The current Interpretive Guidance attached as an Appendix to the ADAAA regulations offers some general principles, but not sufficient clarity. Its first principle is that pregnancy is not per se a disability. "Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments."44

However, the next sentence of the Interpretive Guidance attached to the regulations states that under some circumstances "a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definitions."45

An example of a pregnancy-related condition requiring accommodation is pregnancy-related carpal tunnel syndrome, which results not from repetitive motion (as it does in the general population), but from fluid retention. In either case, workplace accommodations are needed so that the workers can avoid further injury.

B. Guidance is Needed to Clarify that a Worker Who Presents a Doctor's Note Recommending an Accommodation Needed to Protect the Pregnant Woman's Health is Entitled to the ADAAA's Reasonable Accommodations Provisions

Under the ADAAA and its enabling regulations, the substantial limitation requirement is to be "construed broadly in favor of expansive coverage."46 Guidance is needed, however, on the specific application of the new broad construction to rules relating to pregnant workers.

The Appendix to the new regulations following the Interpretative Guidance clarifies that impairment may only limit a single major life activity to be considered a disability under the ADAAA. The Commission states,

"Thus for example, someone with an impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months is substantially limited in the activity of lifting and need not show that he is unable to perform activities of daily living that require lifting in order to be considered substantially impaired in lifting."47

Notably, the only example given refers to a male worker. As discussed above, lifting restrictions are very commonly imposed on pregnant women. The EEOC needs to clarify that a pregnant worker with a doctor-recommended lifting or standing restriction is also substantially limited in major life activity and therefore covered by the ADAAA.

If a doctor, in the exercise of professional judgment, decides that a pregnant woman risks hurting herself if she lifts weight over a certain poundage, her condition qualifies as an impairment. For the pregnant women is in precisely the same position as other workers are: often, the issue is not that they are physically incapable of lifting (or otherwise working without the restriction). The doctor's restriction simply means that a worker needs a restriction in order to avoid further injuring herself. To require a pregnant woman to work in the face of a risk of injury, while no other worker is required to do so under the ADAAA, would constitute a violation of the Pregnancy Discrimination Act's mandate that pregnant women must be treated the same as colleagues with a similar ability or inability to work. To put it another way, because employers are not allowed to second-guess a doctor's orders in any context other than pregnancy, they are not entitled to do so in the context of pregnancy either.

C. Guidance is Needed to Clarify that a Medical Condition that Imposes Risks that a Pregnant Women Will Not Be Able To Deliver a Healthy, Full-Term Baby Constitutes an Impairment Under ADAAA

Moreover, when a doctor, as the result of an individualized assessment of a woman's pregnancy, decides that a restriction or accommodation is necessary to protect the health of the baby, the pregnant woman again has the right to reasonable accommodation under the ADAAA.

The ADAAA provides that reasonable accommodations need to be given to workers who are impaired with respect to their ability to perform a major life activity.48 Notably a "major bodily functions" category was added to the ADAAA to make it easier for impaired individuals to qualify.49

This new language, which expressly includes "reproductive functions," supports an interpretation of impairment that encompasses restrictions needed to deliver a healthy baby.50 Guidance is needed to clarify that if a woman's doctor orders a restriction required to protect her ability to deliver a healthy, full-term baby, she is entitled to reasonable accommodation because delivering a baby is a major bodily function and life activity under the ADAAA.

Given that we would not require a man with severe depression to carry on if he needed an accommodation to protect his health, the Pregnancy Discrimination Act mandates that we treat a pregnant woman the same: she, too, is not required to carry on without an accommodation if doing so would jeopardize her ability to deliver a healthy child.

D. As always, the employer has various defenses under the ADAAA

Under the ADAAA, once a pregnant worker requests an accommodation in the form of a doctor's note ordered restriction, the interactive process required under the ADA begins. This, of course, also means that employers could raise any appropriate defenses, (i.e., undue hardship, direct threat).51 As an example, when a pregnant woman is confined to bed for many months, and her job is not one in which telecommuting is feasible, the employer may not have to accommodate her because doing so would impose an undue burden on the employer. If, however, the woman ordered to bed rest can do her job over the phone and the internet from her bed, then the employer may be required to accommodate her telecommuting arrangement, unless the five factor test for undue hardship is satisfied. 52

3. Guidance is Needed to Affirm the Importance of Stereotyping and Harassment Evidence, and to Correct the Misuse of, and Over-reliance on, Comparator Evidence in Caregiver Cases

Title VII provides that it "shall be an unlawful employment practice for an employer…to discriminate 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" (emphasis added). Title VII does not define discrimination by reference to comparisons; comparators are simply one way among many of determining whether a difference in treatment stemmed from the plaintiff's membership in a protected class. Title VII aims to determine "whether the employer is treating 'some people less favorably than others because of'" sex or another prohibited consideration.53 One way of proving motivation is by introducing evidence comparing the employer's treatment of the plaintiff with its treatment of a "comparator"—someone who is similarly situated to the plaintiff. Yet from the beginning, the Supreme Court has consistently warned that, while comparator evidence is often useful, it is not the only way to prove discrimination. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13 (1973), the Court was careful to note that the factors listed were "not inflexible" and that while comparator evidence was "especially relevant" other forms of evidence "may be relevant to any showing of pretext." In Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 284, 253-54 (1981), the Court warned that plaintiff's burden in proving its prima facie case is "not onerous" and that the employer's actions, "if unexplained, are more likely than not based on the consideration of impermissible factors." The Supreme Court has also stressed that it "never intended" the McDonnell Douglas requirement "to be rigid, mechanized, or ritualistic… [but] merely a sensible, orderly way to evaluate the evidence in the light of common experience…."54 "Precise equivalence," the Court has cautioned, "is not the ultimate question."55

Nonetheless, since 2000, courts have come to rely more and more on comparators. According to a 2009 law review article, the term comparator linked with the term discrimination first appeared in 1981.56 The linked terms were used only 21 times prior to 1990.57 Between 2000 and the end of 2008, however, the linked terms reportedly appeared 1,113 times in a combination of federal and state cases.58 Some courts merely reiterate the position that evidence of similarly situated employees is a "common and especially effective method" for establishing plaintiff's prima facie case.59 However, other courts have turned what began as one heuristic for proving that an employer's action was "because of" sex into a rigid prerequisite, treating the absence of a comparator as fatal to the plaintiff's claim. Three law review articles detail both this trend, and its inconsistency with the statutory language of Title VII as well as Supreme Court case law.60

The lower courts are split. A 2002 study found that six circuits generally hold that a plaintiff's failure to produce a comparator is fatal to her case, while three circuits had case law that was inconsistent. In the remaining three circuits, courts held that comparators were one way plaintiffs could choose to prove they had been disadvantaged because of sex.61 Courts that require a comparator state the fourth element of the McDonnell Douglas test as requiring proof of similarly situated individuals, while others state the fourth element as requiring instead that "the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class."62

We urge the EEOC to issue Guidance highlighting that pregnancy and caregiver discrimination often take the form of stereotyping and harassment, and that investigators, employers, and courts should not assume that they cannot be liable because of the lack of a similarly situated man who has been treated better than the plaintiff.

a. A lack of comparators is not fatal to a plaintiff's Title VII case under Supreme Court case law

The view that comparators are indispensable to a Title VII case is inconsistent with Supreme Court precedent. Justice Thomas has said that discrimination cannot occur absent "a comparison of otherwise similarly situated persons who are in different groups by reason of certain characteristics provided by statute" and Justice Kennedy appears to agree.63 Yet these assertions appear only in dissenting opinions.

Recent Supreme Court cases are clearly inconsistent with the view that a lack of comparator evidence dooms a discrimination case. For example, in Price Waterhouse v. Hopkins, 490 U.S. 228, 236 (1989), the Supreme Court specifically found that no comparators existed when Ann Hopkins was denied partnership, but it found in favor of Hopkins nonetheless. In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), the Supreme Court found for a plaintiff who alleged that he had been sexually harassed by his colleagues despite the fact that both he and they were men—so clearly he did not establish his case by pointing to a similarly situated woman.

Finally and most tellingly, in Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006), the Supreme Court, in a per curiam opinion, reined in the Eleventh Circuit, which had held that a plaintiff can raise an inference of discrimination by pointing to her superior qualification only when "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." (Id., citing Ash v. Tyson Foods, Inc., 129 F. App'x 529, 533 (11th Cir. 2005) (internal citation omitted)). This went too far, the Court held, although it passed up the opportunity to clarify the appropriate standard. The EEOC should provide Guidance to help clarify the situation.

b. Treating the failure to produce a comparator as fatal to a plaintiff's case ignores the fact that plaintiffs can prove caregiver cases through evidence of gender stereotyping

When courts treat the failure to identify as comparator as fatal they read out of existence the long-established method of proving that an employee was treated less favorably because of sex by introducing evidence of gender stereotyping.64

Most notable are cases where courts, in their search for an elusive comparator, ignore the kind of stereotyping evidence that plays a particularly important role in caregiver discrimination cases (as the EEOC noted in its Guidance).

In Young, 2011 U.S. Dist. LEXIS 14266 at *29, a Division Manager informed a pregnant worker that she was "too much of a liability" to remain at work, meaning that in his opinion her pregnancy presented too much of a risk that something would happen to the baby and the employer would be sued. The Supreme Court, in Int'l Union v. Johnson Controls, 499 U.S. 187 (1991), rejected precisely that argument when Johnson Controls argued that it should be able to exclude pregnant women because they might bring tort suits against their employer based on exposure to workplace toxins. The court ignores the plaintiff's case due to lack of comparators.

In Velez v. Novartis, 244 F.R.D. 243 (S.D.N.Y. 2007), one declarant's manager told her she "did not qualify for a pay increase because [she] had not been in her territory during [her] Maternity Leave." Id. at *267. Another manager told a declarant that he preferred not to hire young women, explaining, "First comes love, then comes marriage, then comes flex time and a baby carriage." Id. Another manager allegedly encouraged a declarant to get an abortion. A fourth declarant alleged that her manager urged employees during a training session to avoid getting pregnant, and then looked at her and said, "Oops, too late." Id.

In Persky, 2008 U.S. Dist. LEXIS 13905 at *15, a court dismissed a Lead Store Clerk's case at summary judgment due to lack of a comparator, ignoring the importance of comments by plaintiff's supervisor who said, "he didn't see her returning until after her pregnancy because at the end of her leave she would only be farther along in her pregnancy." Again we meet the explicit assertion that a worker, solely because she is pregnant, is automatically unwilling or unable to work—precisely the kind of overgeneralization the Supreme Court has decried as stereotyping since the 1970s.65

In Geier v. Medtronic, Inc., 99 F.3d 238, (7th Cir. 1996), the plaintiff's supervisor made a series of truly egregious comments about pregnant women and mothers. He advised the plaintiff to "Have all the kids you like—between spring, summer, and fall. I will not work your territory during the winter months." Id. at 240. He phoned her several times at home and in the hospital while she was miscarrying, informing her at 7 a.m. to "get out of your G-d d-n bed and call your accounts if you want to keep your f-g job." Id. at 241. The court discounted the importance of these statements and awarded summary judgment for the employer due to lack of a comparator.

In Troupe 20 F.3d at 736, the court ignores the importance of a statement by plaintiff's supervisor that Troupe "was going to be terminated because [the supervisor] didn't think I was coming back to work after I had my baby," which reflects the stereotype that once women become mothers they are no longer committed to work. Not only did the Troupe court ignore evidence of gender stereotyping; it openly embraced the common stereotype of pregnant women and mothers as "lazy." Plaintiff's manager "subjected her to disparaging remarks 'about the incompetence and laziness of women who are also working mothers.'"66 In its decision, the court in Troupe suggested that the plaintiff's morning sickness continued to affect her work even after her employer allowed her to start later in the day because she slept in "so that noon was 'morning' for her." Id. at 735. The court appears not to know that it's called morning sickness because it begins in the morning and lasts all day.

Finally, Dent v. Davaco, Inc., 2009 U.S. Dist. LEXIS 120631 (N.D. Tex. 2009), ignored in its consideration of the plaintiff's basic discrimination claim the statement by plaintiff's supervisor that she was "done" when she informed him of her pregnancy, an assertion that his wife was pregnant and constantly going to doctor's appointments, his inquiry about "how many tries did it take you" (to get pregnant), and his pointed question whether she was "still pregnant," which presumably was a suggestion that she get an abortion. All three statements reflect the common stereotype that pregnant women and mothers are not committed or competent workers.67 The court granted summary judgment for the employer due to lack of a comparator, without analyzing whether the stereotyping was sufficient to raise an inference of discrimination based on pregnancy. It is impossible to imagine a court discounting a statement that a worker is "done" because of his race, or membership in another protected category.

c. Treating the failure to produce a comparator as fatal to a plaintiff's case ignores the fact that plaintiffs can prove caregiver cases through evidence of harassment

The supervisor's series of statements highlight another accepted way to proving a pregnancy or caregiver discrimination case that is growing in importance: harassment. In the best-known harassment case, Walsh v. National Computer Sys., 332 F.3d 1150 (8th Cir. 2003), the plaintiff was a "top performer" whose supervisor increased her workload, required her to make up time for doctor's appointments although no other employee was required to do so, hyper-scrutinized her performance, refused to allow her to pick up her sick child from daycare, made insulting comments about her pregnancy and motherhood, and allegedly threw a phone book at her, directing her to find a different pediatrician who was open after business hours. The court found for the plaintiff without any mention of comparator evidence.

In Zisumbo v. McCleodUSA Telecomm. Servs, Inc., 154 F. App'x 715 (10th Cir. 2005), a senior account executive was harassed by her supervisor after informing him she was pregnant. Supervisor referred to her as "prego" and spoke to her in a loud and abusive tone. When plaintiff confronted her supervisor he told her to "quit or go on disability if she could not handle the stress of her pregnancy." Id. at 726. The supervisor continued to tell her to quit because of her pregnancy. When the employee told the supervisor to stop harassing her, she was demoted. She complained, but her complaints were not investigated. She received negative evaluations and was transferred to an office 60 minutes away. Finally, she went on disability leave for the rest of pregnancy and did not return to work. The lower court granted summary judgment for the employer. On appeal, the court found the employer's statements inconsistent, her work environment objectively hostile, and both severe and pervasive.

In Griffin v. Lab. Synergy, LLC, 2011 WL 3251551 (S.D.N.Y. 2011), a bookkeeper announced her pregnancy, after which one week of her vacation time was taken away. She was required to take sick days or lunch time for her medical appointments, but other employees were not. The employer began a campaign of attacks against the plaintiff, trying to force her to quit, including unrelenting and overbearing supervision, ignoring then openly ridiculing her concern for workplace safety, and intentionally sabotaging her relationship with a co-worker. The plaintiff had previously told her employer she could not afford to work part-time and assured him she wanted to work full-time after the birth of her child. Nonetheless, the employer moved her to part-time. When she told him she could not afford to work part-time, she was fired. The plaintiff filed suit. The court denied plaintiff's motion to dismiss.

In Iweala v. Operational Tech. Servs., Inc., 634 F.Supp.2d 73 (D.D.C. 2009), a computer systems Analyst/Programmer (from Nigeria) notified her supervisors about pregnancy, then was terminated. It was her second pregnancy during her employment. The employer moved for summary judgment, and the court held that although the employer's proffered reasons for terminating employee were legitimate and nondiscriminatory, a fact issue existed as to whether the employer's reasons for terminating her were pretext for discrimination based on evidence that her supervisors excluded her from meetings, placed her on the bottom of every leader chart for assignments, reprimanded her when other similarly-situated individuals were treated more favorably, treated her rudely, subjected her to profanity, and fired her when she was pregnant. Further, a factual issue existed as to whether the employer terminated employee in retaliation for her complaining about alleged discriminatory conduct toward her, which precluded summary judgment as to hostile work environment claim.

In Pruente v. Home Depot U.S.A. Inc., 2007 U.S. Dist. LEXIS 69159 (D. Kan. 2007), a retail employee became pregnant with her third child. According to the complaint, her female supervisor asked her in her review when she was going to quit and told her to stay home with her children. She submitted her FMLA paperwork for maternity leave, but her supervisor told everyone she was not coming back. When she tried to return from maternity leave, she was told she had been terminated because her FMLA paperwork had not been processed; her supervisor had not processed it because she thought she was not coming back. She was rehired but changed, without her knowledge, from full-time to part-time. She tried to transfer to another job, but was denied because she was not full-time. She complained to Human Resources and to the Department of Labor, and was disciplined for an infraction that happened two months earlier. 68 The court held that while the plaintiff's other claims were barred by the statute of limitations; her hostile work environment claims were not barred.

In Borchert v. State of Okla., 2006 U.S. Dist. LEXIS 5786 (N.D. Okla. 2006), a child care attendant at Oklahoma State University was terminated after her doctor imposed lifting restrictions. The employer claimed the restrictions made the employee ineligible for employment. When the employee informed her employer that she was pregnant her supervisor rolled her eyes and congratulated her in a "hateful manner." Id. at *2. The employee also alleged that after her employer became aware of her pregnancy, the employer refused to consult with her, gave her administrative responsibilities to others, and allowed other employees to harass her about her pregnancy. The employee took leave pursuant to FMLA because of pregnancy complications. When she returned to working she was put on a corrective action plan due to complaints lodged before she took her leave. Also, when she returned she had a doctor's note restricting her to lift no more than 10 pounds due to her pregnancy. The employer informed her that she could not continue working in the child care center because of the weight lifting restrictions. The employee then brought a new doctor's note which restricted her to only lifting infants but not toddlers. The employer informed her she would not be permitted to return to work if she had any restrictions. The court found enough evidence in the record to establish a hostile work environment and so denied the employer's summary judgment motion.

Hostile environment cases have also arisen in the context of motherhood. The complaint for Clark v. AmerisourceBergen Corp., 2005 U.S. Dist LEXIS 1459 (E.D. Pa. 2005), records an in-house counsel and Vice President for Human Resources with an excellent performance record who was questioned by a high-level executive about her ability to do her job with two small children. When she got pregnant with her third child, another executive advised her to keep it a secret. When the secret could no longer be kept, she was told by the General Counsel that she "could not do this" and that she should take a two-year leave of absence and return when her children were older. When she took her maternity leave (at the same time caring for a son who was diagnosed with epilepsy), she worked part-time from home and was pressured to return from leave early. When she returned, she was subjected to hostility and repeated questions about her ability to do her work and to travel – even though she was fully capable of performing all her tasks. When she pointed out to an executive that a man with children was not similarly questioned about his ability to combine work and family, he said, "that's the point, he's a man and he has a wife." Because the executive did not think a mother could work at a high level job, he demoted Clark. She declined to take the demotion and was fired. She was not given a severance package, she was fired just before a large raise and new bonus structure were to kick in, and she found out she had been paid less than comparably situated men all along.69 In its motion to dismiss, the employer claimed that the plaintiff had misunderstood the statements and had quit. The court allowed the case to go forward on Title VII sex discrimination and hostile environment claims.

d. The Pregnancy Discrimination Act precludes dismissal of a plaintiff's case because she cannot identify a pregnant or parturient, or breastfeeding man

The rigid insistence that a comparator is always required in order for a discrimination plaintiff to prove her case has produced absurd results in cases involving pregnancy, childbirth, and breastfeeding, as plaintiffs struggle to identify a pregnant, nursing, or parturient man.

In Martinez v. NBC, Inc., 49 F. Supp. 2d 305 (S.D.N.Y. 1999), a court held that a breastfeeding mother could not make out a prima facie case for gender discrimination because she could not produce a comparator since men don't breastfeed. The same happened in Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 432 (6th Cir. 2004), where the court (quoting the lower court's decision) said, "Drawing distinctions among women…on the basis of their participation in breast-feeding activity, simply is not the same as drawing distinctions between men and women…If anything, [distinctions between women who breast-feed and those who don't] establish 'breast-feeding' discrimination,' which…is not discrimination based on sex." (Internal citations omitted.) Under this analysis, no plaintiff could ever prove that she had been discriminated against due to pregnancy or related medical conditions such as breastfeeding, despite the Pregnancy Discrimination Act's explicit prohibition of discrimination based on "pregnancy, childbirth, or related medical conditions."70 More generally, courts have held that breastfeeding is not a "medical condition" related to "pregnancy and childbirth," a position that makes little sense: if breastfeeding is not a medical condition related to childrearing, it is hard to imagine what is. Though these cases are now superseded by the Patient Protection and Affordable Care Act, as discussed above, they remain important for highlighting some of the flawed approaches to comparator analysis.

In Hess-Watson v. Potter, 2004 U.S. Dist. LEXIS 53 (W.D.Va. 2004), the plaintiff argued that her employer had held against her the fact that she was on maternity leave in awarding a certain workplace benefit. The court dismissed her suit because she had not identified any man out on maternity leave.

Perhaps the most famous pregnancy discrimination case, Troupe 20 F.3d, involved a plaintiff with severe morning sickness. The court awarded summary judgment for the employer on the grounds that the plaintiff had not submitted evidence of a "hypothetical Mr. Troupe" (with severe morning sickness?). The plaintiff's "failure to present any comparison evidence," asserted Judge Richard Posner in the majority opinion, "doomed her case." Id. at 738-39.

When courts hold that women can never prove a discrimination case if they cannot identify a similarly situated man, they embrace a male norm that deprives women of all protection under Title VII to the extent that women are different from men. The result is a man's world in a very literal sense: women are protected only to the extent they are like men, while men are protected across the board. This result is clearly inconsistent with Title VII's prohibition on disadvantaging women "because of sex" or "on the basis of sex."

When courts insist on a comparator in situations in which—by definition—a comparator cannot exist, women become fair game for discrimination based on pregnancy, breastfeeding, and childbirth. This implausible interpretation of Title VII is a reiteration of the Supreme Court's holding in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) that pregnancy discrimination is not discrimination based on sex. But Gilbert was overruled long ago, by the Pregnancy Discrimination Act, which very clearly expressed Congressional intent to establish that discrimination based on pregnancy, childbirth, and related medical conditions as discrimination "because of sex" in violation of Title VII. Clarification from the EEOC would remind courts and investigators that plaintiffs do not have to produce a pregnant, parturient, or breast-feeding man in order to survive summary judgment.

Moreover, in their attempt to identify suitable comparators in contexts where, by definition, women's experience is not comparable to men's, courts end up comparing pregnant women and mothers to employees who are not, in fact, similarly situated. Troupe provides an example. The Troupe court demanded that the plaintiff find a man who had the same record of tardiness, so she could compare her treatment to his, ignoring the fact that a male employee who was persistently late because he was seriously ill or seriously lazy is not similarly situated to a pregnant woman with a good performance record who has a period of acute nausea that typically ends abruptly after a few months, leaving her ready, willing, and able to work.71

e. Misapplication of the comparator "requirement" may be particularly fatal to sex discrimination claims brought by caregiving men

While a court's misapplication of the comparator "requirement" under Title VII may prove devastating to any sex discrimination claim brought by a caregiver, it may prove particularly fatal to a gender stereotyping claim brought by a caregiving man. Existing Second Circuit precedent in Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) clearly states that "stereotyping about the qualities of mothers is a form of gender discrimination" even "in the absence of evidence about how the employer in question treated fathers." Id. at 113. Thus, "stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive." Id. at 122. Given this explanation of gender stereotyping of mothers that results in an adverse employment action as per se sex discrimination, courts may be more willing to infer sex discrimination without comparator evidence when the plaintiff is a mother.

When it comes to caregiving men alleging gender stereotyping, however, many courts not only continue to require a comparator, but frame the proper comparator in a way that dooms potentially legitimate claims from the outset. Men as well as women have had their cases dismissed for lack of a comparator even when they produced evidence of strong and explicit stereotyping. In McGarity v. May Kay Cosmetics, 1998 U.S. Dist. LEXIS 1150 (N.D. Tex. 1998), a father who worked as a Central Weigh Technician was subjected to immediate and persistent hostility and negative employment actions after requesting parental leave to care for his wife and their third child. The court notes that his supervisor "reacted badly to McGarity's request for leave and complained to others in their department that men could not or should not be allowed to take leave for the birth of a child." Id. at *2. The court did not treat this as evidence of stereotyping, and granted summary judgment for the employer for failure to identify a suitable comparator. Again, the Supreme Court since the 1970s has decried as stereotyping employers' refusal to accommodate men who want to play the traditionally female caregiving role.72

The same prescriptive stereotypes, insisting that men play the breadwinner role, appear in Hayden v. Garden Ridge Mgmt., LLC, 2009 WL 5196718 (E.D. Tex. 2009), in which the general manager of a store was fired, allegedly for performance issues, a week after he requested leave to care for his wife and newborn. The HR official who handled his request for leave questioned the amount of time off he requested, commenting that it's "very strange that we have a male manager request that amount of time off, we have never had that before." Id. at *4. This comment evidences clear prescriptive gender stereotyping, namely the viewpoint that men should not take time off for caregiving. Nonetheless, the court ignored the stereotyping evidence and dismissed the gender stereotyping claim because the plaintiff was replaced by a male. Of course, the fact that a man who adheres to men's pre-assigned "breadwinner" role does not encounter discrimination, whereas a man who does not adhere to that role does, is itself evidence of gender bias. This point is lost on the Hayden court.

f. An arbitrary insistence on comparator evidence eliminates Title VII protections for huge classes of plaintiffs

An arbitrary insistence on one particular form of evidence contravenes the intent of Congress by eliminating huge groups of plaintiffs from Title VII protection, in direct contravention of that Act's intent to protect women from discrimination based on sex.73

Women in sex-segregated jobs. Due to intense sex-segregation of jobs, roughly three-fourths of American women would have to change jobs to have the same job titles as men.74 An example is Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 291 (2d Cir. 1998), where the court rejected a secretary's claim because she could not point to a male secretary. When courts arbitrarily insist on evidence that compares women to men, the majority of American women are arbitrarily deprived of the protection of Title VII.

Women who work for small employers. Over 14 million American women work for businesses with under 25 employees, in which it may well be impossible to point to a similarly situated man.75

Women in high-level managerial jobs. Virtually all women in high-skill, or knowledge-intensive jobs, almost by definition, will not be able to point to anyone, male or female, who is sufficiently "similarly situated."

This clearly was not the intent of Title VII, which aimed to offer equal employment opportunity for women.

g. Even where comparator evidence may be useful and appropriate, some courts' insistence on an "almost twin"76 often effectively eliminates Title VII protection

Some courts require that a comparator be "nearly identical" to the plaintiff, making it impossible for most plaintiffs to identify a comparator who is enough like them to be accepted by the court.77 This approach is inconsistent with the Supreme Court's approach to race discrimination in the context of peremptory challenges. In Miller-El v. Dretke, 545 U.S. 231, 247 n. 6 (2005), the Court noted that "None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one."

In addition, some courts have set up arbitrary per se rules, such as that comparators must share the same supervisor.78 The Supreme Court struck this down as a per se rule in Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140 (2008). The Supreme Court also struck down the Eleventh Circuit's bizarre test that a plaintiff could only use comparator evidence to prove discrimination on the ground that her qualifications were superior to those of the comparator "if the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." Ash 546 U.S. at 456-57 (internal citations omitted).

Some courts have been more subtle to much the same effect. Many require that comparators be an "almost twin" in the context of discipline cases, pointing to differences in the type of, number of, or guilt for infractions alleged by the employer, an approach that gives the savvy employer free reign to ensure that a plaintiff will find no comparator.79 When courts require that plaintiffs show that employees are "treated differently for 'nearly identical conduct,' finding a comparator is impossible more often than not.80

Particularly troubling is that courts often use the "almost twin" test to grant summary judgment for the employer. Courts often ignore the very basic rule that, at summary judgment, courts are obliged to take the evidence in the light most favorable to the nonmoving party—in employment cases, almost invariably the plaintiff. "Whether a comparator is similarly situated is 'usually a question for the fact-finder,'" notes the court in Coleman v. Donahoe, 2012 U.S. App. LEXIS 241 at *19 (7th Cir. 2012).

Some of the strangest decisions complain of "small sample size for comparison." Id. at *17. This language appears to refer to the fact that statistical analyses are less dependable when overall numbers are low. But, of course, comparator evidence in the individual cases where this point is raised typically has nothing whatsoever to do with statistical regressions. When courts complain of small sample size, they do no more than reveal their ignorance of statistical concepts.

Other courts take an approach more consistent with the intent and the language of Title VII, noting that "the similarly-situated analysis calls for a 'flexible, common-sense' examination of all relevant factors."81 Although comparators "must be 'directly comparable' to the plaintiff in 'all material respects'…they need not be identical in every conceivable way." Id. (citing Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009), which cites Raymond v. Ameritech Corp., 442 F.3d 600, 610-11 (7th Cir. 2010)). "We are looking for comparators, not 'clone[s],'" notes the Donahoe court (quoting Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010)). "Comparators need only be similar enough to enable 'a meaningful comparison.'" Id at *25. (Quoting Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007), aff'd 553 U.S. 442 (2008)).

A more sweeping issue is whether the existing McDonnell Douglas three-step pattern has overstayed its welcome. In her concurring opinion in Colman v. Donahoe, Judge Wood argues that "the various tests we have insisted lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation…could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class…. [I]t seems possible to collapse all these tests into one. We have already done so when it comes to the trial stage of a case. See. e.g., EEOC v. Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d 296, 301 (7th Cir. 2002). It is time to finish the job and restore needed flexibility to the pre-trial stage."82

h. Courts' comparator analyses in light duty cases are particularly troubling

Courts' comparator analyses are particularly troubling in the context of cases in which plaintiffs are requesting light duty assignments, typically in response to notes from their physicians. A particularly dramatic example is Dimino v. New York City Transit Auth., 64 F. Supp. 2d 136, 142 (E.D.N.Y. 1999), in which the court awarded summary judgment for the employer on the grounds that the plaintiff "has been unable to demonstrate that any similarly situated employees were treated better than she was"—despite the fact the she had introduced evidence that her employer had accommodated one officer who had been injured while scuba diving, another who had been injured while jogging, a third who was recovering from foot surgery, and a fourth who had hurt his hamstring. Equally troubling is Young v. United Parcel Servs., 2011 U.S. Dist. LEXIS 14266 (D. Md. 2011), where the court dismissed a pregnant plaintiff's case for lack of comparator evidence when the plaintiff had introduced evidence that her employer accommodated male employees who needed light duty for a wide variety of reasons, including that they had lost their drivers' licenses due to drunk driving.

In addition, in a series of cases courts refuse to allow pregnant plaintiffs to use as comparators workers who have claimed a disability under the Americans with Disabilities Act.83 These courts argue that pregnant plaintiffs in need of light duty are not similarly situated as men who need light duty due to an ADA-eligible disability, because the employer is required by law to accommodate the ADA-eligible workers but not the pregnant women. This is the purest form of transcendental nonsense.84 The only reason the employer is required to accommodate the workers who cannot lift for reasons others than pregnancy but not pregnant workers equally in need of light duty is that the court has arbitrarily decided to exclude the pregnant workers from protection under the law. This exclusion in effect allows light duty for any impairment in the universe other than pregnancy, in direct contravention of the Pregnancy Discrimination Act's mandate to treat pregnant workers "the same as those with an equal ability or inability to work.

Guidance is sorely needed to correct courts' overreliance on, and misuse of, comparator evidence. The following principles are important ones:

  1. Comparator evidence is not a threshold requirement for establishing a Title VII claim. It is merely one method for proving pretext or raising an inference of discrimination at the prima facie case stage of litigation. At the prima facie stage of an employment case, the issue of whether or not someone is a suitable comparator typically is a question for the finder of fact.
  2. A plaintiff can raise an inference of discrimination, without identifying a comparator, by introducing evidence of gender stereotyping. The following stereotypes appear from the case law to be particularly common, although many other statements also may be evidence of gender stereotyping:
    1. That a pregnant woman is being barred from work out of her employer's concern for her unborn child.
    2. That an employee should, or must, get an abortion if she wants to keep her job.
    3. That a pregnant woman will not return to work after childbirth, unsupported by evidence about the individual involved.
    4. That pregnant women are not committed to work.
    5. That pregnant women are lazy or incompetent.
    6. That pregnant women should not work.
    7. That a working mother should not breast-feed her child.
    8. That the pregnant woman is in a "man's job," or a job unsuitable for women, pregnant women, or mothers.
    9. That pregnant women cost employers too much, unsupported by specific evidence drawn from the workplace at issue.
  3. Courts are particularly confused about stereotyping of men in cases involving discrimination against caregivers. Men who play an active role as family caregivers, instead of men's expected "breadwinner" role, often encounter prescriptive stereotyping, i.e., old-fashioned assumptions about what gender role men should play. Oncale 523 U.S. establishes that stereotyping of men by men is litigable under Title VII without the need for a comparator.
  4. A plaintiff who seeks to prove harassment based on pregnancy or maternity need not introduce comparator evidence.
  5. The insistence that a comparator be "nearly identical" to the plaintiff is inconsistent with the purpose and intent of Title VII, and with the Supreme Court's approach to proving discrimination in other contexts.
  6. Plaintiffs have many ways to prove a circumstantial case under a McDonnell-Douglas framework, including showing pretext by discrediting the employer's asserted legitimate reason for the adverse action, by reference to objective standards of performance, and by relying on comments made by decision makers. It is plain that insistence on a proffer of comparator evidence to defeat summary judgment is inappropriate.
  7. The following types of evidence are particularly suitable to raise an inference of discrimination in a prima facie case in pregnancy or caregiving discrimination cases:
    •  
    • Self-comparison: Treatment before and after a woman became pregnant (or adopted, or became a parent or step-parent), e.g., Hunter v. Mobis Ala., LLC, 559 F. Supp. 2d 1247 (M.D. Ala. 2008) (employee praised for performance until she announced her pregnancy, and her attendance was never scrutinized until she announced her pregnancy; court found sufficient indicia of discrimination without a comparator). See also Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 123 F. App'x 558 (4th Cir. 2005) (female lawyer's work was criticized once her supervising partner learned she was a mother; she received good reviews from other supervisors, but poor review from the supervising partner). Women with children compared to men with children, e.g. Phillips v. Martin Marietta Corp. 400 U.S. 542, (1971); Trezza 1998 U.S. Dist. LEXIS 20206.85
    • Women with children compared with women without children, e.g., McGrenaghan v. St. Denis School, 979 F. Supp. 323 (E.D. Pa. 1997) (sex plus claims are brought where a subclass of a protected category is discriminated against, plaintiff who was replaced by a woman without a disabled child may maintain her sex plus claim). Note that the message of the studies of maternal wall bias is that mothers encounter gender bias not encountered by women without children, e.g. Correll et al., supra note 4.
    • Comparison to an objective measure: For example, if a pregnant woman is terminated and she is the highest grossing salesperson or the winner of the employee of the decade award. Or a mother is clearly qualified for a promotion and the company decides to reorganize rather than promote anyone. Other examples might be sales made, customer satisfaction, awards won, spotless disciplinary record, or qualification for job.
    • Timing:  Woman announces she's pregnant and is fired that day or very soon after.86 While timing alone usually can't satisfy the fourth prong, very close proximity is sufficient.
    • Position remains open: In a failure to hire case, the employer cannot avoid a discrimination claim simply by not filling the plaintiff's position. Shepherd v. Geo. W. Park Seed Co., Inc., 2008 WL 4065775 at *5 (D.S.C. 2008) (observing that the fourth prong of the McDonnell Douglas prima facie case can be satisfied by evidence showing that "the position remained open"); Pierce v. Sears, Roebuck and Co., 2005 US Dist. LEXIS 1360 (D. Me. 2005) (same).
    • A "RIF of one" or other questionable inclusion in RIF: In a RIF situation, a plaintiff can raise an inference of discrimination by showing his or her employer could have retained him or her but instead retained non-protected employees. Gordon-Howell v. Penn-Plax, Inc., 232 F. Supp. 2d 1251 (D. Kan. 2002) (pregnant plaintiff laid off in RIF and three non-pregnant employees retained), citing Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1167 (10th Cir. 1998). Additionally, a plaintiff can meet her prima facie case by showing a nexus between her selection for a RIF and pregnancy. E.g., Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006) (temporal proximity between employer's learning of pregnancy and selection for RIF sufficient to meet fourth prong).

Conclusion

I want to thank the Commission for the opportunity to present these ideas today. The 2007 Guidance had a very positive impact on protecting the rights of pregnant women and mothers to remain on the job without "maternal wall" bias and discrimination. We look forward to working with the Commission to ensure that pregnant women, mothers, and fathers who wish to engage in family caregiving can do so without jeopardizing their jobs due to caregiver discrimination.

Footnotes

1 Prepared by Joan C. Williams, Cynthia Thomas Calvert, Patricia Davidson and Stephanie Bornstein, with research help from Rachel Dempsey, Hillary Hansen and Sean Kaneshiro.

2 EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, available at http://www.eeoc.gov/policy/docs/caregiving.html (May 23, 2007).

3 Cynthia Thomas Calvert, The Center for WorkLife Law, Family Responsibilities Discrimination: Litigation Update 2010, available at http://www.worklifelaw.org/pubs/FRDupdate.pdf (last visited Feb. 5, 2012).

4 Steven Benard, et al., Cognitive Bias and the Motherhood Penalty, 59 Hast. L.J. 1359 (2007-2008). (See also, Shelley J. Correll et al., Getting A Job: Is There A Motherhood Penalty?, 112 AJS 1297, (2007)).

5 EEOC Enforcement Guidance, supra note 2.

6 Calvert, supra note 3, at 19.

7 Most of these cases involve motions for summary judgment; the facts recited are those alleged by the plaintiff.

8Lopez v. Bimbo Bakeries USA, Inc., No. A119263, 2009 Cal. App. LEXIS 3171, at *9-*16 (Cal. Ct. App. April 23, 2009).

9Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir. 1998).

10Hercule v. Wendy's of N.E. Florida, Inc., 2010 WL 1882181 (S.D. Fla 2010).

11 Advanced Med. Solutions, LLC, 2007 CAFEHC LEXIS 5 (Sept. 18, 2007).

12Paz v. Wauconda Healthcare and Rehab. Ctr., LLC, 464 F.3d 659 (7th Cir. 2006).

13Does v. Dist. of Columbia, 448 F. Supp. 2d 137 (D.D.C. 2006).

14Roe v. Wade, 410 U.S. 113 (1973).

15 Stephanie Bornstein, The Law of Gender Stereotyping and the Work-Family Conflicts of Men, 63(5) Hastings L.J. (forthcoming May 2012) (discussing recent cases in which male plaintiffs lost Title VII claims based on a misapplication of the comparator "requirement").

16Beyst v. Pinnacle Airlines, Inc., 2008 U.S. Dist. LEXIS 45468 (E.D. Mich. 2008).

17Wells v. City of Montgomery, Ohio, 2006 U.S. Dist. Lexis 23013 (S.D. Ohio 2006).

18Rabe v. Nationwide Logistics, Inc., 530 F. Supp. 2d 1069 (E.D. Mo. 2008).

19Aldridge v. Indian Elec. Coop., 2008 WL 1777480 (N.D. Okla. 2008).

20Bates v. 84 Lumber Co., 2006 U.S. App. LEXIS 23640 (6th Cir. 2006).

21Viera v. Costco Wholesale Corp., 2009 WL 564369, at *3 (E.D. Wash. Feb. 27, 2009).

22Drew v. Plaza Constr. Corp., 2010 U.S. Dist. LEXIS 8699 (S.D.N.Y. 2010).

23Hall v. City of Aurora, 2008 U.S. Dist. LEXIS 46555 (N.D. Ill. 2008).

24Meyer v. United Airlines, Inc., 2009 U.S. Dist. LEXIS 11114 (N.D. Ill. 2009).

25Blohm v. Dillards, Inc., 95 F. Supp.2d 473 (E.D.N.C. 2000).

26 Morgeson v. OK Interiors Corp., 2007 U.S. Dist. LEXIS 48581 (S.D. Ohio 2007).

27Scott v. Allied Waste Serv. of Bucks-Mont, 2010 U.S. Dist. LEXIS 136202 (E.D. Pa. 2010).

28Germain v. County of Suffolk, 2009 U.S. Dist. LEXIS 45434 (E.D.N.Y. 2009).

29Cleveland Bd. of Edu. v. LaFleur, 414 U.S. 632 (1974).

30 Nat'l Ctr. For Women & Policing, Recruiting & Retaining Women: A Self-Assessment Guide for Law Enforcement 111 ((2001)(quoted in Karen J. Kruger, Pregnancy & Policing: Are They Compatible? Pushing the Legal Limits on Behalf of Equal Employment Opportunity, 22 Wisc. Women's L.J. 61, 82 (2007)).

31Andrews-Filas v. Pier 1 Imports, (U.S.) Inc., 2006 WL 3743709, at *1 (N.D. Ill. 2006).

32See, e.g., Serednyi v. Beverly Healthcare LLC, 2011 656 F.3d 540 (7th Cir. 2011), Young v. United Parcel Service, Inc., 2011 WL 665321 (D Md 2011), Arnold v. N. Okaloosa Med. Corp., 2010 WL 3119886 (ND Fla 2010), Dulina v. Hometown Nursing and Rehabilitation Center, 2010 U.S. Dist. LEXIS 142608 (MD Penn 2010), Garcia v. Renaissance, 2010 WL 5330494 (ED Mich 2010), Serednyi v. Beverly Healthcare LLC, 2010 U.S. Dist. LEXIS 38221 (ND Ind 2010), Spees v. James Marine, Inc., 2010 U.S. App. LEXIS 16477, F.3d 380 (6th Cir. 2010), Bell v. Cabela's, 2009 WL 902266 (ND WVa 2009), Dent v. Davaco, 2009 U.S. Dist. LEXIS 120631 (ND Tex 2009), Germain v. County of Suffolk, 2009 U.S. Dist. LEXIS 45434 (ED NY 2009), Prater v. Detroit Police Dep't, No. 08-CV-14339, 2009 WL 4576039 (ED Mich 2009), Persky v. Dolgencorp, Inc., 2008 U.S. Dist. LEXIS 13905 (WD Okla 2008), Harris v. Potter, 2007 EEOPUB LEXIS 2171 (EEOC 2007), Andrews-Filas v. Pier 1 Imports (U.S.), Inc., 2006 WL 3743709 (ND Ill 2006), Reeves v. Swift Transportation Company, Inc., 2006 U.S. App. LEXIS 12046 (6th Cir. 2006), Stansfield v. O'Reilly Automotive, Inc., 2006 U.S. Dist. LEXIS 31640 (SD Tex 2006), Tysinger v. Police Dep't of Zanesville, 463 F.3d 569 (6th Cir. 2006), Welfare v. American Airlines, Charge No. 520-2006-02955 (EEOC August 14, 2006), McQueen v. Airtran Airways, 2005 U.S. Dist. LEXIS 37461 (ND Fla 2005), Raboin v. Mobile Infirmary, 2005 AL Jury Verdicts Rptr. LEXIS 934 (SD Ala 2005), Walker v. Fred Nesbit Distribution Co., 2004 U.S. Dist. LEXIS 15969 (SD Iowa 2004), Flores v. The Home Depot, Inc., 2003 U.S. Dist LEXIS 5510 (ED Penn 2003), Dimino v. New York City Transit Authority, 1999 U.S. Dist. LEXIS 14137 (ED NY 1999); Adams v. Nolan, 962 F.2d 791 (8th. Cit. 1992).

33 Jamie L. Clanton, "Toward Eradicating Pregnancy Discrimination at Work: Interpreting the PDA to 'Mean What It Says,'" 86 Iowa L. Rev. 703, 715 (2001).

34 Joanna L. Grossman & Gillian L. Thomas, "Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model," 21 Yale J.L. & Feminism 15, 38 (2009).

35Persky v. Dolgencorp, Inc., 2008 U.S. Dist. LEXIS 13905 (W.D. Okla. 2008); Grossman & Thomas, supra, at 33.

36Villaneuva v. Christiana Care Health Services, Inc., 2007 WL 188111, *2 (D. Del.).

37Flores v. The Home Depot, Inc., 2003 U.S. Dist. LEXIS 5510, *2.

38Amerson v. Pinkerton Security, 2006 U.S. Dist. Lexis. 38671 (E.D. Mich. 2006).

39Troupe v. May Dep't Stores Co., 20 F.3d 734 (7th Cir. 1994).

40Wiseman v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 48020 (D. Kan. 2009).

41Harris v. Potter, 2007 EEOPUB LEXIS 2171 (EEOC 2007).

42 29 CFR Section 1630, App. Sec. 1630.2(h) (2008).

43 Ibid. at Section 1630.2 (j).

44 29 CFR Section 1630, (Appendix to Part 1630-Interpretive Guidance on Title I of the Americans with Disabilities Act) Section 1630.2(h) (2011).

45 Ibid.

46 29 CFR Section 1630.2(j)(1)(i) (2011).

47 29 CFR Section 1630, (Appendix to Part 1630-Interpretive Guidance on Title I of the Americans With Disabilities Act) Section 1630.2 (j)(i)(vii) (2011).

48 29 CFR Section 1630.9 (2011).

49 See ADAAA Section 3 (2)(B); see also 154 Cong. Rec. S8350 (daily ed. Sept. 11, 2008 (Statement of Sen. Harkin).

50 ADAAA Section 3(2)(B); 29 CFR Section 1630.2(h)(1)(i)(1)(ii) (2011).

51 29 CFR Section 1630.9; Section 1630.15; see also Sections 1630.2 (p); (r) (2011).

52 29 CFR Section 1630.2(p) (2011).

53Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).

54 Ibid.

55McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 at 283 n. 11 (1976).

56 Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191, 193 n. 1 (2009).

57 Ibid. The author's data base search included a variety of claims (i.e., Equal Pay Act, Title VII) raised in federal and state cases. See n. 1 of the law review article for details and citations.

58 Ibid.

59Abdu-Brisson v. Delta Air Lines, Inc. 239 F. 3d 456, 468 (2d Cir. 2001).

60 Suzanne Goldberg, Discrimination By Comparison, 120 Yale L.J. 728 (2011); Ernest F. Lidge III, The Courts' Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 Miss. L. Rev. 831 (2002); Sullivan, supra note 8.

61 Lidge, supra note 9, at 849 – "In six circuits—the Fourth, Fifth, Seventh, Ninth, Eleventh, and District of Columbia—the courts generally impose [a similarly situated] requirement. Three circuits—the First, Second, and Tenth—for the most part reject the requirement. In three circuits—the Third, Sixth, and Eighth—the case law goes both ways."

62Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005).

63Olmstead v. L.C. by Zimring, 527 U.S. 581, 617 (1999) (Thomas, J., dissenting).

64 See, e.g., Calvert, supra note 3; Joan C. Williams & Stephanie Bornstein, The Evolution of "FReD": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 Hast. L.J. 1311 (2008).

65See, e.g., Reed v. Reed, 404 U.S. 71 (1971).

66Trezza v. Hartford Inc., 1998 U.S. Dist. LEXIS 20206 at *5, (S.D.N.Y. 1998).

67 Benard, et al., supra.

68Complaint, Pruente v. Home Depot U.S.A. Inc., 07-cv-2133, D. Kan. (Mar. 28, 2007)

69Complaint, Clarke v. AmerisourceBergen Corp., 04-cv-4332, E.D. Pa. (Sept. 13, 2004).

70 42 U.S.C. § 200e(k).

71 Of course, if the seriously ill employee needs accommodation, he may well be entitled to it under the ADAAA if he can perform the essential functions of the job.

72See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

73See, e.g., Coleman v. B.G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1204 (1997)("Gender-plus plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender."); Ann C. McGinley & Jeffrey W. Stempel, "Condescending Contradictions, Richard Posner's Pragmatism and Pregnancy Discrimination," 46 Fla. L. Rev. 193 (1994).

74 Joan C. Williams, Unbending Gender: Why Family and Work Conflict and What To Do About It (New York, Oxford University Press, (2000), 81.

75 Brian Headd, The Characteristics of Small Business Employees, 18 Monthly Labor Review 13 (April 2000).

76 Sullivan, 216.

77 Ibid.

78 Ibid. at 217-19.

79 Ibid. at 219.

80McQueen v. Airtran Airways, Inc., 2005 U.S. Dist. LEXIS 37461, *22 (N.D. Fla. 2005).

81Coleman v. Donahoe, 2012 U.S. App. LEXIS 241 at *17 (citing Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007)) (7th Cir. 2012).

82 Ibid. at *51-52.

83 See, e.g., Young, 2011 U.S. Dist. LEXIS 14266.

84 Felix, Cohen, "Transcendental Nonsense and the Functional Approach," 35 Colum. L. Rev. 809 (1935).

85 See Claire-Therese D. Luceno, Maternal Wall Discrimination: Evidence Required for Litigation and Cost-Effective Solutions for a Flexible Workplace, 3 Hast. Bus. L. J. 157, 163-65 (2006).

86 Stephanie Bornstein, Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers 11 (2011), 11, available at https://worklifelaw.org/publications/PoorPregnantAndFired.pdf.