Watkins Ludlam Winter & Stennis, P.A.

            Laurie Chadwick, a mother of six-year old triplets and an eleven-year old, has the makings of a sex discrimination claim against her employer for denying her a promotion says the First Circuit.  How did this happen?  After all, the individual chosen over her was also a female and the mother of two small children.  The decisionmaker was a female.  How could Ms. Chadwick have a claim of sex discrimination which usually requires her to show that she was treated less favorably than a member of a non-protected class (i.e., a man).  The answer:  Ms. Chadwick could proceed to the jury on a “sex plus” theory and rely on evidence of stereotypical notions that mothers with small children will neglect their job duties in favor of caring for their children. 

            As stated, Ms. Chadwick, is the mother of four children.  In addition to being a mother, she had a long tenure with Wellpoint, Inc., with excellent reviews of her work performance.  She was viewed so favorably by her superiors that her direct supervisor encouraged her to apply for a promotion as a Team Leader.  Given her history of excellent reviews and given the fact that she was already performing many of the job functions of Team Leader, Ms. Chadwick must have thought that she would be a front-runner for the position.  Yet, a team of three interviewers rated her low on her interview, and the decision was made to give the position to another applicant who was also female. 

            Ms. Chadwick sued Wellpoint for sex discrimination, and the district court dismissed the claim.  The district court found that Ms. Chadwick had not presented sufficient evidence of sex discrimination despite statements made by decisionmakers that Ms. Chadwick must have a lot on her plate due to her childbearing responsibilities.  The district court discounted these statements since the decisionmaker did not tell her that her gender factored into the decision not to promote her.  The First Circuit disagreed and reversed the district court finding that Ms. Chadwick had presented enough evidence to have her case presented to the jury.

            In reversing the district court, the First Circuit first noted that employers rarely are so bold to affirmatively state that an impermissible criteria such as gender was used in the decisionmaking process.  Often, the only evidence that an employee will have is circumstantial evidence, and the appellate court found the evidence in this case to be enough.  In finding sufficient evidence for jury consideration, the court pointed to the decisionmaker’s explanation to Ms. Chadwick when she didn’t get the job:  “It was nothing you did or didn’t do.  It was just that you’re going to school, you have the kids, and you have a lot on your plate right now.” 

            The decisionmaker explained her statement by claiming that she didn’t want to tell Ms. Chadwick that she interviewed poorly and that her statement was a misguided attempt to soften the blow of not getting the promotion.  The court found that a jury was entitled to question the decisionmaker’s veracity in asserting that Ms. Chadwick did not interview well in that Ms. Chadwick had a stellar work history and that the interviewers were individuals who had intimate knowledge of Ms. Chadwick’s work history without the benefit of an interview. 

            The court noted that employers engage in sex discrimination when they make an adverse job action based on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.  The court stated, “The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.”

            A number of lessons can be gleaned from this case.  First, it is vitally important not to make assumptions.  You can’t assume that someone’s work performance will suffer from outside responsibilities – whether it be childcare or something else.  If an individual has a history of stellar work performance despite outside responsibilities, there is no reason to believe that future performance will suffer.  And, finally, never try to “soften the blow.”  Give valid reasons for your employment decisions or a court/jury could very well find that you were trying to hide discriminatory motives. 

"Listing of these previously mentioned area(s) of practices does not indicate any certification of expertise therein."