Lisa Sivieri had worked as a paralegal in the Massachusetts Department of Transitional Assistance for more than two years when her daughter, Olivia, was born in 1999. Sivieri, who had received positive performance evaluations, noticed a change after Olivia's birth.

Her supervisor made derogatory comments about women with young children and promoted three paralegals hired after Sivieri, whom she had trained. When Sivieri asked why she was passed over, her supervisor said managers concluded she no longer sought promotion because she had a child at home.

Sivieri filed a complaint with the Massachusetts Commission Against Discrimination in November 2001, alleging the department discriminated against her based on the gender stereotype that a woman cannot be both a good mother and a committed worker.

In June the Massachusetts Superior Court upheld Sivieri's claim. Dismissing the argument that Sivieri could not claim sex discrimination because the agency hadn't promoted any men over her, the court said, “Obviously gender discrimination is more blatant when it works to the advantage of male employees. However, discrimination against mothers is no less corrosive when that discrimination results in the advancement of another woman who is not a mother.”

Sivieri's case exemplifies what some employment attorneys view as a new trend–family responsibilities discrimination lawsuits. The topic caught the attention of the media in July when the University of California-Hastings Center for WorkLife Law issued a report titled “Litigating the Maternal Wall,” claiming such lawsuits increased 400 percent between 1996 and 2005. Published awards in the 613 cases analyzed ranged from one dollar to $25 million.

“The lesson of the Hastings study is the need for employers to be mindful of resolving these issues,” says Rod Fliegel, shareholder at Littler Mendelson. “This is definitely moving up to the forefront of importance for employees.”

Carving A Path

The trend of family responsibilities discrimination suits developed despite the absence of a federal law granting family caregivers protected status. On the state and local level, only the District of Columbia includes “family responsibilities” as a prohibited basis for discrimination, while California outlaws discrimination based on marital status. But courts have carved out a path for these suits that plaintiffs have pursued with increasing frequency.

Most experts trace the origins of family responsibilities claims to Phillips v. Martin Marietta, a 1971 Supreme Court case that established the “sex-plus” theory of sex discrimination. Under the theory, employers may not treat employees differently than other workers on the basis of their sex “plus” another characteristic, such as having young children. In Phillips, the employer refused to allow mothers of school-age children to apply for jobs that were open to men with young children and women without children. The Court held this discriminated against women who were also mothers.

While plaintiffs filed some cases in the 1970s and 1980s, family responsibility discrimination suits did not develop in significant numbers for 20 years after Phillips. The Hastings study found the trend took off in the 1990s, coinciding with a jump in the number of working mothers and passage of two critical pieces of legislation. The Civil Rights Act of 1991 gave discrimination plaintiffs the right to a jury trial, punitive damages and damages for emotional suffering. The Family Medical Leave Act of 1993 (FMLA) drew attention to employers' responsibilities to help employees balance work and family.

Most such lawsuits are filed under Title VII, which prohibits sex discrimination in employment. Those claims include allegations of gender stereotyping, disparate treatment and disparate impact. Other suits allege violations of the FMLA, including retaliation against caregivers who take leaves of absence. While women filed 92 percent of the cases the Hastings study examined, men have successfully claimed they, too, suffered discrimination due to their role as caregivers.

While the Hastings study says plaintiffs win 50 percent of the cases, higher than the win rate in other forms of discrimination litigation, not everyone buys into the validity of the claims.

“Analytically these cases are out on a limb,” says Barbara Brown, partner at Paul Hastings. “Making distinctions within a group of women is getting away from what sex discrimination is.”

Loose Lips

Many plaintiffs apparently succeeded because of “loose lips” comments by supervisors who made remarks suggesting motherhood makes a woman less capable of competing successfully at work than men or women without children.

In Trezza v. Hartford Inc. a federal court held in 1998 that an attorney with two young children proved disparate treatment by showing she was passed over for promotions in favor of less qualified men with children and a woman without children. The plaintiff cited comments from an executive who complained about “the incompetence and laziness of … working mothers.”

In a 2004 case, Back v. Hastings, a school psychologist was denied tenure after supervisors questioned whether her commitment to the job would drop “because she had little ones at home.” The 2nd Circuit held that stereotypes about mothers not being committed to work could support a gender discrimination claim, even without a comparison to a similarly situated male employee.

“Pregnancy and motherhood are ripe areas for people to make comments that can result in lawsuits,” says Julie Harris, partner at Calfee, Halter & Griswold, because compliments about motherhood may carry negative connotations.

Accommodating Parenthood

While Harris advises training to alert supervisors to watch comments to new mothers, she and other employment attorneys warn that issues lie ahead as employees step up pressure for accommodation for two-career families.

Lori Bowman, shareholder in Ogletree Deakins Nash Smoak & Stewart, believes the issue may follow the path of disabilities discrimination, with legislation mandating flex time, telecommuting and part-time options for caregivers.

Paula Barran, partner in Barran Leibman, thinks employers will change workplace policies to retain their best employees. She sees the litigation trend as “a bit of a social blip as employers get adjusted to family friendly workplaces.”

However, Barran acknowledges that accommodating the needs of working parents is neither easy nor cheap.

“If you operate on a shoestring and have someone who can't travel, it's a problem,” she says.

Lisa Sivieri had worked as a paralegal in the Massachusetts Department of Transitional Assistance for more than two years when her daughter, Olivia, was born in 1999. Sivieri, who had received positive performance evaluations, noticed a change after Olivia's birth.

Her supervisor made derogatory comments about women with young children and promoted three paralegals hired after Sivieri, whom she had trained. When Sivieri asked why she was passed over, her supervisor said managers concluded she no longer sought promotion because she had a child at home.

Sivieri filed a complaint with the Massachusetts Commission Against Discrimination in November 2001, alleging the department discriminated against her based on the gender stereotype that a woman cannot be both a good mother and a committed worker.

In June the Massachusetts Superior Court upheld Sivieri's claim. Dismissing the argument that Sivieri could not claim sex discrimination because the agency hadn't promoted any men over her, the court said, “Obviously gender discrimination is more blatant when it works to the advantage of male employees. However, discrimination against mothers is no less corrosive when that discrimination results in the advancement of another woman who is not a mother.”

Sivieri's case exemplifies what some employment attorneys view as a new trend–family responsibilities discrimination lawsuits. The topic caught the attention of the media in July when the University of California-Hastings Center for WorkLife Law issued a report titled “Litigating the Maternal Wall,” claiming such lawsuits increased 400 percent between 1996 and 2005. Published awards in the 613 cases analyzed ranged from one dollar to $25 million.

“The lesson of the Hastings study is the need for employers to be mindful of resolving these issues,” says Rod Fliegel, shareholder at Littler Mendelson. “This is definitely moving up to the forefront of importance for employees.”

Carving A Path

The trend of family responsibilities discrimination suits developed despite the absence of a federal law granting family caregivers protected status. On the state and local level, only the District of Columbia includes “family responsibilities” as a prohibited basis for discrimination, while California outlaws discrimination based on marital status. But courts have carved out a path for these suits that plaintiffs have pursued with increasing frequency.

Most experts trace the origins of family responsibilities claims to Phillips v. Martin Marietta, a 1971 Supreme Court case that established the “sex-plus” theory of sex discrimination. Under the theory, employers may not treat employees differently than other workers on the basis of their sex “plus” another characteristic, such as having young children. In Phillips, the employer refused to allow mothers of school-age children to apply for jobs that were open to men with young children and women without children. The Court held this discriminated against women who were also mothers.

While plaintiffs filed some cases in the 1970s and 1980s, family responsibility discrimination suits did not develop in significant numbers for 20 years after Phillips. The Hastings study found the trend took off in the 1990s, coinciding with a jump in the number of working mothers and passage of two critical pieces of legislation. The Civil Rights Act of 1991 gave discrimination plaintiffs the right to a jury trial, punitive damages and damages for emotional suffering. The Family Medical Leave Act of 1993 (FMLA) drew attention to employers' responsibilities to help employees balance work and family.

Most such lawsuits are filed under Title VII, which prohibits sex discrimination in employment. Those claims include allegations of gender stereotyping, disparate treatment and disparate impact. Other suits allege violations of the FMLA, including retaliation against caregivers who take leaves of absence. While women filed 92 percent of the cases the Hastings study examined, men have successfully claimed they, too, suffered discrimination due to their role as caregivers.

While the Hastings study says plaintiffs win 50 percent of the cases, higher than the win rate in other forms of discrimination litigation, not everyone buys into the validity of the claims.

“Analytically these cases are out on a limb,” says Barbara Brown, partner at Paul Hastings. “Making distinctions within a group of women is getting away from what sex discrimination is.”

Loose Lips

Many plaintiffs apparently succeeded because of “loose lips” comments by supervisors who made remarks suggesting motherhood makes a woman less capable of competing successfully at work than men or women without children.

In Trezza v. Hartford Inc. a federal court held in 1998 that an attorney with two young children proved disparate treatment by showing she was passed over for promotions in favor of less qualified men with children and a woman without children. The plaintiff cited comments from an executive who complained about “the incompetence and laziness of … working mothers.”

In a 2004 case, Back v. Hastings, a school psychologist was denied tenure after supervisors questioned whether her commitment to the job would drop “because she had little ones at home.” The 2nd Circuit held that stereotypes about mothers not being committed to work could support a gender discrimination claim, even without a comparison to a similarly situated male employee.

“Pregnancy and motherhood are ripe areas for people to make comments that can result in lawsuits,” says Julie Harris, partner at Calfee, Halter & Griswold, because compliments about motherhood may carry negative connotations.

Accommodating Parenthood

While Harris advises training to alert supervisors to watch comments to new mothers, she and other employment attorneys warn that issues lie ahead as employees step up pressure for accommodation for two-career families.

Lori Bowman, shareholder in Ogletree Deakins Nash Smoak & Stewart, believes the issue may follow the path of disabilities discrimination, with legislation mandating flex time, telecommuting and part-time options for caregivers.

Paula Barran, partner in Barran Leibman, thinks employers will change workplace policies to retain their best employees. She sees the litigation trend as “a bit of a social blip as employers get adjusted to family friendly workplaces.”

However, Barran acknowledges that accommodating the needs of working parents is neither easy nor cheap.

“If you operate on a shoestring and have someone who can't travel, it's a problem,” she says.