"Sex plus" discrimination occurs where an employer classifies employees on the basis of sex plus another characteristic. An example is where an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. This type of stereotype and "sex plus" discrimination was at issue in the recent decision of the United States Court of Appeals for the First Circuit in Chadwick v. Wellpoint, Inc., where the plaintiff, a mother of four, was passed over for promotion, despite having better qualifications, and alleged that the subclass being discriminated against based on sex was women with children, particularly young children.
Laurie Chadwick, after nearly ten years employment at Wellpoint, applied for promotion to a management position. Chadwick had been performing for some time several of the position's responsibilities, was encouraged by her supervisor to apply for the promotion, and possessed a seeming very important credential: a recent performance evaluation scoring her 4.40 out of a possible 5.00 points. Chadwick and another female were the two finalists. Chadwick had about six years more pertinent experience and her most recent performance review was superior (the other finalist received a 3.84 out of a possible 5.00 points on her review compared with Chadwick's 4.4 out of a possible 5). Interviews of the finalists was the final step in the process. The final decision maker was a female, Nancy Miller, who graded the other finalist higher than Chadwick on the interview and subsequently offered the promotion to the other finalist.
At the time of the promotion decision, Chadwick was the mother of four children: an 11 year old son and 6 year old triplets in kindergarten. Despite the burdens that four children necessarily carry, the court noted that there was "no allegation, insinuation, or for that matter evidence that Chadwick's work performance was negatively impacted by any child care responsibilities she may have had."
After she was passed over for the promotion, Chadwick filed suit claiming that Wellpoint had denied her the promotion "based on the sex-based stereotype that mothers, particularly those with young children, neglect their work duties in favor of their presumed childcare obligations." The district court granted WellPoint a summary judgment.
The principal evidence supporting Chadwick's claim was as follows: (a) she was significantly better qualified for the promotion than the other finalist who was selected; and, (b) statements made by management around the time of the promotion decision indicated that sexual stereotyping was a factor including the following:
- Two months before the decision was made, Miller, the decisionmaker, upon learning of Chadwick's four children, sent an e-mail to Chadwick stating, "Oh my - I did not know you had triplets. Bless you!"
- A manager that interviewed Chadwick during the promotion process, in response to her answer to a question replied, "Laurie, you are a mother[.] [W]ould you let your kids off the hook that easy if they made a mess in [their] room[?] [W]ould you clean it or hold them accountable?"
- Miller, after informing Chadwick that she had been passed over, told her: "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."
- Miller also told Chadwick that "if [the three interviewers] were in your position, they would feel overwhelmed."
- Miller also advised Chadwick that, "there would be something better down the road," and that Chadwick would look back and say, "It's a good thing that the opportunity didn't work out because I'm happier with this down the road."
In defense, Miller on behalf of Wellpoint, claimed that she passed Chadwick over for a promotion because she had "interviewed poorly" and that she had only told Chadwick that she had "too much on her plate" in an attempt to "soften the blow." Wellpoint also asserted that the other finalist was the mother of two children, an argument that the court disregarded, observing that "discrimination against one employee cannot be remedied solely by non-discrimination against another employee in that same group."
The Court noted that the United States Supreme Court had identified sex-based stereotypes as an impermissible form of discrimination in the Price Waterhouse case, where a woman was denied partnership in an accounting firm for which she worked and was told by the partnership that she was too aggressive and macho, should attend a charm school, and should dress and behave more femininely. There, the Supreme Court pointedly observed, "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group."
Courts have recognized that stereotyping and "sex plus" discrimination is unlawful in a number of decisions including the following:
Sex-stereotyping shown where employers stated that a woman could not "be a good mother" and work long hours, and that a "woman would not show the same level of commitment ...because [she] had little ones at home." Back v. Hastings on Hudson Union Free School District, 36 F.3d 107 (2nd Cir. 2004).
- Sex stereotyping found where decision maker admitted he did not promote plaintiff "because she had children and he did not think she would want to relocate her family, though she hadn't told him that." Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004).
- Sex-based discriminatory animus shown where direct supervisor questioned "whether [the plaintiff] would be able to manage her work and family responsibilities." Santiago-Ramus v. Centinnial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000).
- In a Pregnancy Discrimination Act case evidence of discrimination shown where supervisor told employee that she was being fired so that she could "spend more time at home with her children" because that statement "invoked widely understood stereotypes the meaning of which is hard to mistake." Sheehan v. Donlan Corp., 173 F.3d 1039 (7th Cir. 1999)