In a study to be published next month in the American Journal of Sociology, Cornell University researchers sent out resumes and cover letters to real employers for hypothetical job applicants. [2]  All had the same credentials, but the letters and resumes contained hints to indicate that some of the applicants were parents. [3]  The researchers wanted to find out if employers are less likely to pursue an interview if they find out that a candidate is a parent. [4]  The answer was yes for mothers, no for fathers. [5]

The same study shows the problem is widespread; mothers are forty-four percent less likely to be hired than non-mothers who have the same resume, experience, and qualifications; and mothers are offered significantly lower starting pay (study participants offered non-mothers an average of $11,000 more than mothers) for the same job as equally qualified non-mothers. [6]

Consider the case where the plaintiffs were found to have been properly discharged after refusing to attend a three-week training session due to having infant children at home. [7]  The court reasoned that there are no cases classifying women with infant children as a subcategory of the protected class in a disparate impact discrimination case. [8]  Although the decision to fire the plaintiffs is unfiar, it does not constitute discrimination. [9]

The court opinion suggests that while mothers cannot be discharged for having children, they can be fired if their children interfere with their work performance.  This is the concern many women face.  It becomes even more of an uphill battle for mothers who are seeking jobs.

By virtue of their choice to have children, mothers have to face an additional hurdle in their job searches.  The Pregnancy Discrimination Act prohibits discrimination against women on the basis of pregnancy by categorizing employment decisions made "because of or on the basis of pregnancy, childbirth, or related medical conditions" as decisions made "because of sex." [10]  However, the "because of sex" language does not extend to mothers which means they have no protection from discrimination in the hiring process.  The main concern here is not about bias against mothers who are already in the workforce, it is about discrimination against those mothers who are seeking jobs. 

What can be done to address these problems?  Pennsylvania legislators are currently debating two bills that if passed, would amend the Pennsylvania Human Relations Act of 1955 to include language making it illegal for employers to ask job applicants about their marital/familial status. [11]  This is certainly a step in the right direction.  The bills would send a clear message to employers that discrimination based on familial status is strictly prohibited.  Additionally, the passage of the two bills would signal the remaining twenty-seven states to follow suit.

Of course, one cannot expect legislation to magically cure all the problems.  While employers will stop asking if the job applicant is married or has children, they can still learn of an applicant's familial status if the applicant lists on her resume that she is the president of the PTA.  Moreover, how will the legislation impact the work environment?

Some reports indicate that backlash is growing against mothers who demand flexible work schedules. [12]  A woman sought a work schedule allowing her to split her work week between Dallas and Chicago so her family does not have to move. [13]  Her company agreed then slashed her pay by twenty percent. [14]  Does this constitute discrimination?  What about work schedules defining "full-time" as working fifty or more hours per week?  If some mothers cannot meet that time schedule and are discharged from their jobs, it it discrimination?  This is a future facing female law students pursuring jobs with big firms.  It is next to impossible to bill 1800 hours a year without working fifty-plus hours per week.  Add children into the equation and one is left with a big question mark.

Should discrimination against mothers in the hiring process finally come to an end, employers may well turn to facially neutral policies with disparate impacts on mothers.  Such policies may include: rules that employees cannot use sick days to care for sick family members; restrictions on leave or absences within certain periods of time; and compensations structures that reward (or penalize) employees based on the number of hours they work rather than productivity or performance. [15]

Fortunately, there are protections against such measures.  For mothers who choose to work on part-time schedules, paying them at a lower rate than someone working on a full-time schedule could violate the Equal Pay Act. [16]  Additionally, the U.S. Supreme Court has recognized that employers using gender stereotypes to make workplace decisions constitutes sex discrimination. [17]

III. Protections 

Though not perfect, there are protections available to women who are in the workforce.  The trouble for many mothers is that they are not able to enter the workforce to benefit from those protections.  One hopes that the Pennsylvania legislators can pass the bills banning discrimination against mothers in the hiring process for it will mark a step in the right direction for working mothers.

[1] Sheila Gibbons, 'Maternal Profiling' Story Has Faint Heartbeat, Women's eNews, Dec. 6, 2006, http://www.womensenews.org/article.cfm/dyn/aid/2986/context/archive.

[2] Kara Jesella, Mom's Mad.  And She's Organized., N.Y. TIMES, Feb. 22, 2007, available at http://www.nytimes.com/2007/02/22/fashion/22mothers.html?ei=5070&en=cb6b825fd1607b65&ex=1172811600&emc=etal&pagewanted=all.

[3] Id.

[4] Id.

[5] Id.

[6] MomsRising.org, http://www.momsrising.org/PA (last visited Feb. 28, 2007).

[7] Pittsnogle v. W. Va. Dep't of Transp., 605 S.E.2d 796, 803 (W. Va. 2004).

[8] Id.

[9] Id.

[10] 42 U.S.C. § 2000e(k) (2000).

[11] MomRising.org, supra note 6.

[12] Jenny Deam, Despite Women's Gains, Mothers Still Face Hiring Obstacles, The Denver Post, Feb. 16, 2006, available at http://www.azcentral.com/families/articles/0216momswork0216.html.

[13] Id.

[14] Id.

[15] Issue Briefs: Current Law Prohibits Discrimination Based on Family Responsibilities and Gender Stereotyping, http://www.uchastings.edu/site_files/WLL/IssueBriefFRD.pdf (last visited Feb. 28, 2007).

[16] Id.

[17] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).