Claims of Stereotyping

A recent case out of the federal Circuit Court in Boston illustrates the dangers that employers face when they make employment decisions based upon a commonly held belief about members in a subclass of a protected class, and not upon a member's qualifications or conduct. In Chadwick v. Wellpoint, Inc., the employee successfully argued to the Circuit Court of Appeals that she should have an opportunity to demonstrate to a jury that her employer's decision not to promote her was based upon the sex-based stereotype that mothers of young children are more likely than fathers of young children to neglect work duties in favor of childcare obligations.

Laurie Chadwick believed that she was the frontrunner for a management position at Wellpoint. She received excellent reviews at her most recent performance evaluation. She was already performing several of the responsibilities of the management position. But Wellpoint gave the promotion to another woman who shared the same position as Chadwick, but for six years less than Chadwick. Also, the performance evaluations of the woman Wellpoint promoted were not as high as Chadwick's evaluations.

Shortly before Wellpoint decided to give the promotion to the other woman, the Wellpoint employee who made that decision discovered that Chadwick had three six-year-old triplets in addition to an eleven-year-old son. Chadwick was also taking one college course a semester during her employment. The woman that Wellpoint promoted had two children, ages nine and fourteen.

Chadwick brought suit under Title VII, claiming that Wellpoint discriminated against her on account of her sex. The Circuit Court found that Chadwick was entitled to a jury trial based upon three statements made by Wellpoint employees, each of whom was involved in the promotion decision:

1. When the ultimate decisionmaker had discovered that Chadwick had triplets, she sent Chadwick an email stating, "Oh my - I did not know you had triplets. Bless you!"


2. During Chadwick's interview, an interviewer asked her how she would respond if an associate did not complete a project on time. When Chadwick did not give an answer the interviewer liked, the interviewer replied, "Laurie, you're 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?"


3. When the ultimate decisionmaker informed Chadwick that she did not get the promotion, the decisionmaker stated, "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." In the same conversation, the decisionmaker stated that, "if the interviewers [all of whom were women] were in your position, they would feel overwhelmed."

The Circuit Court classified Chadwick's claim as a "sex plus" claim. The "plus" describes the case where the employer does not discriminate against all members of a protected class. In Chadwick, the "plus" refers to the allegation that Wellpoint discriminated against mothers of young children, as opposed to discriminating against all women. But regardless as to whether this case was a "sex plus" claim or just a sex discrimination claim, the Court noted that every sex discrimination case comes down to one simple question: Did the employer take an adverse employment action at least in part because of an employee's sex?

The United States Supreme Court has taken notice of the stereotype that women, not men, are responsible for family caregiving. Examining the specific facts of Chadwick reveals that this stereotype does not apply to this case. Chadwick's husband was the primary caretaker for the children. He worked off-hour shifts, nights, and weekends when Chadwick was home with the children.

Under Chadwick, an employer is not free to assume that family responsibilities would make a woman, because she is a woman, a poor worker. The Chadwick decisionmaker explained to Chadwick that the decision not to promote her had nothing to do with what Chadwick "did or didn't do." The Court found that a jury could interpret this statement to mean that Wellpoint was penalizing Chadwick not for something she did but for something she simply is. The Court further found that a jury could interpret the decisionmaker's "Bless you!" email as a statement that the decisionmaker felt badly for Chadwick because Chadwick's life apparently must have been so difficult as the mother of three young children.

Chadwick demonstrates that sex discrimination claims can arise from a variety of events. These claims do not always arise from boorish behavior, sexual comments, or requests/demands for sex. Sex discrimination claims could also arise from well-intentioned conduct that was premised upon sexual stereotypes. To reduce the risk of being the subject of a claim based upon stereotyping, an employer should examine its employment policies to assure that those policies are not based upon employees' characteristics, but are instead based upon employees' actual conduct and qualifications.