Yahoo’s CEO Marissa Mayer announced this week that she is expecting twin girls, and Yahoo’s stock reportedly took an immediate dive. (H8rs!) Mayer said that she plans to take only two weeks off, and she can probably manage that because she has a nice nursery right off her CEO office. (You may recall that she had it built at the same time that she outlawed telecommuting by Yahoo employees. In her defense, I think she’s mellowed a bit since those days.)

Meanwhile, did Hillary Clinton allow her employees to have lives while she was Secretary of State? After all, she did reportedly let them telecommute a couple of times when it snowed. (Thank you ever so much, Mr. Scrooge!)

And why is work-life balance never an issue for male CEOs? Oh.

All of which brings me to this week’s topic: Yes, an employer can fire an employee for having too many kids. Well, not for having the kids, per se, but for not being able to do the job because she (or he) has too many kids.

The key is to treat men and women with childcare responsibilities equally, and not to make stereotypical sex-based assumptions about whether parents can juggle work and home.

Julie Gingras was hired to work for Milwaukee County at a mental health facility. Her (female) boss hired her with the knowledge that Ms. Gingras had five small children, for whom she bore primary caretaking responsibility. Things sort of went south almost immediately after the offer was made: first, Ms. Gingras said she couldn’t start work when they wanted her, because she couldn’t arrange for childcare quickly enough. That caused her to miss a week of orientation. Then she refused to line up childcare unless she had a written offer. The County almost immediately obliged, but when Ms. Gingras got the offer, she said that the hours weren’t what had been promised. (They were 8 a.m. to 4:30 p.m., Monday through Friday.)

Then Ms. Gingras told her boss that she would have to take time off for her kids’ “physical therapy appointments, speech therapy appointments, appointments at her children’s school, and ‘birth to three’ classes for her newborn twin daughters.” She said she would try to schedule them for late in the afternoon, but couldn’t guarantee that this would always be possible. Her boss allegedly asked Ms. Gingras things like, “You can’t do that after work?” and “Can’t your husband take them?”

Finally, on a Thursday about 10 days after Ms. Gingras started work, she told her boss that she would have to take three of her kids to dentist appointments on the following Monday. (At least, this is what happened according to Ms. Gingras. Her boss denies having been told on Thursday.) The next day (Friday), the boss sent Ms. Gingras what was apparently a proposed blurb welcoming Ms. Gingras to her new position. (The blurb was very nice, and said that Ms. Gingras “is a wonderful addition to our department.”)

Ms. Gingras didn’t respond to the email until Sunday night at 10:43 p.m., and then only to remind the boss of the kids’ dentist appointments the next morning. The boss said she understood this to mean that Ms. Gingras would be out on Monday morning, but in fact Ms. Gingras did not show up at all on Monday. On Tuesday (Day 15 on the new job, if I’m counting correctly), Ms. Gingras was fired because she was “not a good fit.”

Ms. Gingras sued the County for “sex-plus” discrimination: in her case, sex plus her family caregiving responsibilities. But a federal judge in Wisconsin granted summary judgment to the County, saying that it wasn’t against federal law to terminate an employee just for having too many family responsibilities that interfered with work. Instead, the law prohibits stereotyping (for example, making the assumption that women with kids can’t do the job or will be less “committed” to the job than men with kids) and differential treatment based on sex (for example, treating women with childcare responsibilities less favorably than men with childcare responsibilities, or vice versa).

In this case, the Court said, there was no such stereotyping or differential treatment going on, and the County’s “belief that Ms. Gingras would miss work as a result of her family responsibilities . . . was based in reality and not in an illegal stereotype based on gender.”

The Court said, “Title VII is not a ‘get out of work free’ card for parents with young children — whether male or female.” That makes sense to me.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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