2nd Circuit Holds “Working Mother” Can Proceed with her Gender Bias Suit

An employer that questions a mother’s devotion to her job can be found liable for Gender Discrimination based on stereotypes related to motherhood and employment constituting sex discrimination under the principles of equal protection.

In Elana Back v. Hastings Hudson Union Free School District, (2d Cir. No. 03-7058, 4/8/04, 2004 WL 739846), the Second Circuit held that sex – plus is actionable in a Section 1983 case because the Equal Protection Clause forbids sex discrimination no matter how it is labeled. The Court stated that “It was also eminently clear that it is Unconstitutional to treat men and women differently simply because of presumptions about the respective roles they play in family life”


Plaintiff, a school psychologist, with excellent reviews eligible for tenure in her third year in the District. School officials begin making comments after her return from maternity leave such as:

a. A supervisor inquired how Back was Planning on spacing her offspring and said “please do not get pregnant until I retire”, and suggested that Back wait until her son was in Kindergarten before having another child.

b. Supervisor said that Back should “maybe …reconsider whether she could be a mother and do this job…”

c. Principle and supervisor were concerned that if Back received tenure, she would work only until 3:15 p.m. and did not know how she could possibly do this job with children.

d. Supervisor and Principle said that Back’s job was “not for a mother” and they were worried that her performance was “just an act” until she got tenure and that because she was a young mother, she would not continue her commitment to the workplace.

The Principle and supervisor did not recommend Back for tenure. She was subsequently terminated from employment by the superintendent. The Second Circuit held that the comments made were not the kind of “innocuous words” that it has previously held to be insufficient as a matter of law. To provide evidence of discriminatory intent, stereotyping of women as caregivers can by itself and without more be evidence of impermissible, sex-based motive.

Take Home Message

The Second Circuit has taken a lead in finding that gender bias includes a common form of stereotyping that women experience after they become mothers, namely…that women who are mothers are less committed to their job and less serious about their work. This case sets the precedent that any statement that a woman who is planning on a family, or has a family, is therefore disqualified from holding a job, is per se, illegal. The recognition that women who are mothers, are experiencing quite different forms of stereotyping and discrimination than women do in general makes this decision significant. As employers update their anti-discrimination policies, some emphasis and training should be given to this decision.