Second Circuit tears down 'maternal walls'.

First it was "glass ceilings," now it's "maternal walls"--the notion that women can't be good workers and good mothers. But in a landmark ruling, the Second Circuit has allowed a case to proceed even though the plaintiff, who says she was treated unfairly because she was a new mother, did not prove that her employer treated men or childless women any differently. (Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004).)

The decision is "stunning," said Joan Williams, director of the Worklife Program and the Project for Attorney Retention at American University's Washington College of Law in Washington, D.C. Williams recently completed a study that found the notion of maternal walls--"which stereotypes women not just as women but specifically as mothers"--alive and well in the workplace. "The reason Back is so important is that it shows what we've been saying all along," she said.

The ruling can be considered a major victory for working mothers who face discrimination for two main reasons: "First, this is the first federal circuit to recognize the tremendous stereotyping that you find [when you mix] work and family. Second, the court allowed the case to go forward without evidence of a male comparator," that is, a male colleague in a similar situation who was treated differently from Back.

The latter is important, Williams noted, because surveys find that about two-thirds of American women who work have jobs traditionally held by women, so it can be difficult to find a male employee whose treatment can be compared to a woman's.

In 1998, Elana Back was hired as a school psychologist at Hillside Elementary School in Chester, New York. In her first two years she received consistently "outstanding" and "superior" performance reviews and was in line for tenure. In 2000, she took three months of maternity leave.

When Back returned, her lawsuit alleges, the attitudes of her supervisors--personnel director Ann Brennan and school principal Marilyn Wishnie--changed drastically. In her filing, Back claims that Brennan suggested she space her "offspring" and not "get pregnant until I retire." And Wishnie said that "she worked from 7 a.m. to 7 p.m. and that she expected the same from me. If my family was my priority, she stated, maybe this was not the job for me."

The two supervisors, Back alleges in court papers, also complained that it would be hard to fire her if she received tenure and that "once I obtained tenure, I would not show the same level of commitment because I had little ones at home."

In May 2001, on the advice of her attorney, Back wrote to John Russell, superintendent of the school district, explaining her situation and asking him to investigate. Russell interviewed Wishnie and Brennan, and he informed Back in June that her complaint was "meritless." The same month, Back received her first negative performance review, which cited her for being disorganized, careless about attendance, and unable to get along with the students' parents. Brennan and Wishnie sent a copy of the evaluation to Russell, recommending that Back be denied tenure, and Russell agreed.

Back sued the school district, Brennan, Wishnie, and Russell. The trial court granted summary judgment to the defendants, finding no evidence they had treated "similarly situated" male workers differently. The defendants also argued that no other women with children had complained of discrimination, even though the school's staff was over 75 percent female, and most of these women were mothers.

The Second Circuit refused to require this proof and reinstated Back's claim. "Although her case would have been stronger had she provided or alleged the existence of such evidence, there is no requirement that such evidence be adduced," wrote Justice Guido Calabresi, adding that "although the jury is surely allowed to consider such comparative evidence, what matters is how [she] was treated."

The defendants had also raised the unusual argument that the discrimination Back experienced was the type known as "sex plus"--sex plus another characteristic that is not sex- or gender-based because the alleged bias refers to "a subclass of men or women," not the entire sex. Calabresi called the term "more than a little muddy" and concluded that "stereotyping of women as caregivers can by itself ... be evidence of an impermissible, sex-based motive."

The appeals court reversed the summary judgment for all but Russell, saying he had no way" to evaluate Back's situation beyond what he heard from Brennan and Wishnie.

Williams said the case spotlights a hidden but growing problem: "There is a lot of press about women opting out of the workforce, and that's fine if they do it by choice. But a pretty hefty number of women feel like they were pushed out. That doesn't get half as much coverage."

She said the problem of maternal walls is getting more attention. "It's a generational shift. Women of my generation were just so grateful to have a job, we were amazed to be able to be mothers and work, so we weren't going to rock the boat. Young women in their 20s and 30s take so much for granted--that they will be in the workplace, and also the ideal of motherhood. So when they hear the kind of statements Back had to hear, they recognize right away that it is discriminatory."

Williams's research found 40 recent, successful maternal-walls cases; almost all involved comments characterizing working mothers as lazy, uncommitted, not promotable, and undependable.

"This could be the next generation of discrimination cases," she said. "There is no telling where it will go."