by Rich Voelbel
Work-life balance is a reality that most employers have come to accept. Employees have children, and occasionally, they need to take days off to care for them when they are sick. While managers may not always like the fact that their employees have to miss work, as the case below demonstrates, it’s best to keep remarks about an employee’s children to yourself, especially when they’re directed at only one gender.
Background
Judge David S. Doty of the U.S. District Court for the District of Minnesota recently denied an employer’s request to dismiss an employee’s sex discrimination claim. For four years, Shannon Swider worked in various positions for Hologic, Inc. According to Swider, her manager made comments about her family life and treated her differently than her male counterparts. After she took two days off work, he remarked that her young children were preventing her from performing her job effectively.
Two months later, during a business trip to Chicago, Swider’s manager got into a dispute with her, telling her, “No one with young kids can do this job.” She reported the comment to HR. Nevertheless, less than a month later, she was terminated. Her job was given to a female employee who has children who are older than Swider’s.
Swider filed a lawsuit alleging violations of the Minnesota Human Rights Act (MHRA) and Title VII of the Civil Rights Act of 1964. To establish a minimally sufficient case of discriminatory termination under either the MHRA or Title VII, an employee typically must show the following:
- She is a member of a protected class.
- She was qualified for the job from which she was discharged.
- She was discharged despite being qualified for the job.
- Her job was assigned to someone outside the protected class, or similarly situated nonprotected class members weren’t discharged for nearly identical conduct.
Hologic sought to have the claims dismissed, arguing that (1) Swider’s job was given to another female with children and (2) she failed to allege that similarly situated men were retained after nearly identical conduct. However, she also alleged that male employees with children received no harassing treatment and that a male employee spoke openly about his young children in front of the same manager and wasn’t treated differently than workers without children. The court ruled that Swider’s allegations were sufficient to establish a preliminary case of sex discrimination. Swider v. Hologic, Inc., U.S. District Court― District of Minnesota, No. 12-01547 (Dec. 3, 2012).
Bottom line
This case serves as a reminder to employers that comments about an employee’s family life can lead to litigation. Although it may be frustrating to have employees miss work on account of their children, those absences are a reality in the workplace. Comments about an employee’s children may not seem as offensive as other forms of discrimination (e.g., sexual harassment or race-based comments), but they can serve as the basis of a discrimination lawsuit. Therefore, you should focus on objective behavior instead. In this case, if the employer had focused solely on attendance, the matter may have turned out differently.
Rich Voelbel is an attorney with Felhaber Larson Fenlon & Vogt in Minneapolis, Minnesota. He may be contacted at rvoelbel@felhaber.com .