You Go, Governor!

The author looks at the legality of some of the media’s questions regarding Governor Sarah Palin and how these compare to EEOC guidance on the “Maternal Wall.”

The presidential election of 2008 is changing history by breaking down some significant barriers—Hillary Clinton’s near-successful run for the Democratic nomination; Barack Obama’s nomination for President by the Democratic Party; and now, Sarah Palin’s nomination for Vice-President by the Republican Party. No matter who wins, it will be historic and exciting.

I would like to focus on the Palin nomination simply because it is too good an object lesson to pass up for explaining what the Equal Employment Opportunity Commission has dubbed the “Maternal Wall.”

Most readers are aware that pundits, reporters, the self-dubbed “cultural elite,” et al. jumped all over what they characterized as Governor Palin’s lack of judgment in running for a challenging office while she had a Down’s Syndrome baby as well as other young children to take care of at home. Just check out the New York Times (“…Ms. Palin has set off a fierce argument among women about whether there are enough hours in the day for her to take on the vice presidency, and whether she is right to try.”)

Or, there’s the take by John Roberts of CNN quoted on the blog: “The baby is just slightly more than four months old now. Children with Down’s syndrome require an awful lot of attention. The role of Vice President, it seems to me, would take up an awful lot of her time, and it raises the issue of how much time will she have to dedicate to her newborn child?” (This link has a video of Roberts asking the question.)

Or, there’s the Washington Post’s Sally Quinn on Palin: “She is the mother of five children, one of them a four-month-old with Down Syndrome. Her first priority has to be her children. When the phone rings at three in the morning and one of her children is really sick what choice will she make?”

Let’s hope none of these critics ever find themselves in the position of making a hiring decision based on these kinds of considerations. If they do, they may find themselves on the losing end of an EEOC complaint.

More than a year ago, the EEOC called together experts to discuss this issue. The EEOC Vice Chair Silverman talked about the “maternal wall” which can “act as a barrier to the career advancement of women with children….” The participants cited court decisions that have concluded women were discriminated against because they have children, and explained the difference between this and the “glass ceiling”: “Indeed, some women are never stopped by the ‘glass ceiling’ because bias against caregivers prevents them from ever getting that high. Men also face discrimination in the workplace when they dare to defy stereotypes about how mothers and fathers act and should act.” There was general agreement at this public meeting that when employers “make decisions based on stereotypes about working mothers..” it violates Title VII. This brand of discrimination has been dubbed “family responsibility discrimination,” or FRD.

Following this public meeting, the EEOC issued enforcement guidance on the issue entitled “Unlawful Disparate Treatment of Workers With Caregiving Responsibilities.” (No. 915.002, 5/23/07)

In short, the EEOC declares, “Employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women.”

For those of you who are attorneys interested in the legal analysis, see the EEOC guidance, or the excellent and comprehensive statement offered at the EEOC public meeting by Joan C. Williams, law professor at the University of California, Hastings College of Law and the Director of the Center for WorkLife Law.

Those of you who are supervisors, beware. Just because many in the national media and others feel free to throw up the maternal wall against Sarah Palin, don’t assume you can do the same in employment decisions affecting an employee or applicant – male or female – who has family responsibilities.

Questions about experience and qualifications for a job are fair game, but questions about Governor Palin’s ability to juggle family and national office are not. Of course, Sally Quinn and company can write and say what they want, but those who pander to political correctness may want to think twice about throwing up the maternal wall.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.