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By: Eric T. Berkman
A paralegal who claimed she was repeatedly denied promotions because she was a mother with small children could sue her employer for sex discrimination, a Superior Court judge has ruled in a case of first impression.
The employer, a state agency, argued that the plaintiff was really alleging discrimination based on parental status and that parents are not a protected class under Massachusetts discrimination law.
But Judge Raymond J. Brassard disagreed.
“[The plaintiff] has alleged and put forth evidence that [the defendant] denied her promotions based upon her status as a mother of small children and the stereotypical belief that she could not be both a hard worker and a good mother,” wrote Brassard, denying summary judgment on the discrimination matter but granting it in part on a statute of limitations issue.
“Accordingly, the plaintiff has set forth a prima facie case of sex discrimination under Chapter 151B sufficient to survive a motion for summary judgment,” the judge said.
The 19-page decision is Sivieri v. Commonwealth of Massachusetts, Department of Transitional Assistance, Lawyers Weekly No. 12-213-06.
A ‘step forward’
The plaintiff’s attorney, Paul H. Merry of Boston, described the decision as a “step forward” in the development of Massachusetts’ statutory policy on discrimination. “I’m very pleased that [Brassard] has articulated a policy finding that stereotypical thinking and labeling of people is a violation of our anti-discrimination laws,” said Merry. “Stereotyping in general is what discrimination is all about, and I think this decision is a very useful tool.”
The decision also sends an important message to employers to focus on the capacity and skill of their employees and job candidates rather than on “tangential matters” such as their family situation, Merry said.
“Part of what made this case work [as a sex-discrimination case] was that it would be very unusual for an employer to consider that a man with a child wouldn’t be as good a worker, while it’s often been suggested that a woman with a child isn’t as good because she’d be distracted,” said Merry. “In any event, employers need to avoid taking into account their own assumptions about the impact family might have on potential employees.”
The Attorney General’s Office, which represented the defendant, declined comment pending trial of the case.
Passed over
Plaintiff Lisa Sivieri started working as a paralegal specialist for the defendant, the Massachusetts Department of Transitional Assistance, in 1997.
The plaintiff consistently received positive performance evaluations. Within a year-and-a-half, the defendant gave her increased responsibilities, including training new hires in her unit.
During the first 10 months of employment, the plaintiff had married and begun thinking of having children.
In July 1999, when she was five months pregnant, the plaintiff applied for an opening as a training paralegal.
Though the plaintiff received an interview, the position was given to another paralegal, Cynthia Sullivan, whom the plaintiff had helped train. Sullivan had worked for the defendant for less than a year and had no children.
The plaintiff claimed she had noticed a negative attitude in her unit towards women with small children, but did not recognize the extent until after her daughter was born in November 2000.
She also said her supervisors often made negative remarks about the effect of women with young children in the workplace. Regarding the unit’s workload, the plaintiff’s direct supervisor, Debra Graham, allegedly said the unit would remain effective “as long as nobody else g[ot] pregnant.”
In the spring of 2000, Sullivan became a supervisor and received another promotion a year later.
Meanwhile, two other paralegals with less seniority than the plaintiff — and whom the plaintiff had also trained — received promotions; one had no children and the other had an 11-year-old daughter.
The plaintiff then approached Graham to find out why she was repeatedly being passed over.
Graham apparently told her that the birth of her child had led unit managers to conclude that she no longer sought a promotion. Graham also allegedly said she was surprised the plaintiff was upset about not getting promoted considering her family obligations at home.
Following this conversation, the plaintiff claims she faced increased management scrutiny, criticism of her performance and reduction of responsibilities.
This treatment, paired with the defendant’s apparent attitude toward women with young children, caused the plaintiff emotional and psychological distress with physical symptoms. The plaintiff also put off having a second child, causing a strain in her marriage.
In February 2002, on her physician’s advice, the plaintiff requested selection for a voluntary layoff from the agency.
The plaintiff filed a bias claim with the Massachusetts Commission Against Discrimination in November 2001. On May 20, 2002, she removed her MCAD complaint to Superior Court.
Gender roles
Brassard rejected the defendant’s argument that the alleged acts did not constitute sex discrimination.
“The Supreme Court has held that ‘stereotyped remarks’ can be evidence of gender discrimination,” said Brassard, citing the court’s 1989 decision in Price Waterhouse v. Hopkins, where a female accountant, who had been denied partnership because her firm felt she did not act or dress sufficiently feminine, was able to sue the firm for allowing stereotyped attitudes to figure into its decision not to promote her.
With respect to the parenting issue, Brassard pointed out that both the 1st and 2nd U.S Circuit Courts of Appeals had found that, under facts similar to the one in this case, employment decisions based on the stereotype that women cannot be both good mothers and good workers could constitute gender discrimination under federal antidiscrimination law.
“In light of these decisions, and the legislative directive that [Chapter 151B] be applied liberally, the court finds that stereotypical remarks about the incompatibility of motherhood and employment can be evidence of gender discrimination,” said Brassard. “These types of statements reflect a discriminatory animus not towards parenthood, but towards women, based upon antiquated ideas about what a woman’s role in society should be.”
Brassard was also unconvinced by the defendant’s assertion that this case could not constitute sex discrimination because the plaintiff did not establish that male employees received promotions over her.
“Obviously gender discrimination is more blatant when it works to the advantage of male employees,” said Brassard. “However, discrimination is no less corrosive when that discrimination results in the advancement of another woman who is not a mother.”
Time bars
Brassard did accept the defendant’s argument that some of the plaintiff’s claims were time-barred by Chapter 151B’s six-month limitations period.
Since the plaintiff filed her complaint on Nov. 13, 2001, the judge noted that she couldn’t seek damages for any allegedly discriminatory acts that occurred before May 13, 2001 unless they were part of a “continuing violation.”
This meant that at least one discriminatory act had to have occurred during the limitations period, that any timely acts had to bear a substantial relationship to the untimely ones, and that the untimely ones had to have not triggered her awareness and duty to assert her rights.
The two promotion rejections the plaintiff had received during the limitations period were not time-barred, but the earlier ones were, the judge said.
“[W]hile [the timely] rejections … do have a ‘substantial relationship’ to [the plaintiff’s] prior rejections, [the plaintiff] acknowledged in her deposition that she was aware of the [defendant’s] pattern of refusing to promote women with children … prior to her application for the Training Paralegal position in 1999,” said Brassard, granting summary judgment in part.
“Therefore,” he continued, “[the plaintiff] could have formed a reasonable belief that the promotion denials occurring prior to May 13, 2001 were discriminatory at the time they occurred and the continuing violation doctrine does not apply.”