Lawsuit sets precedent against misperception of working moms

Author:Diane E.Lewis, Globe Staff
Date: 06/18/2000
Page: F2
Section: Business

Jill Carmichael wasn't pregnant when she started her law clerk job at Wynn & Wynn in Fall River in 1989. But her boss later decided she must have been. After all, she already had an infant, had indicated she wanted more children, and months later gave birth again.

Two years later, now the mother of two children, Carmichael approached the firm about a full-time position as a law associate. He was noncommittal.

At a meeting with other lawyers, however, he implied that the 24-year-old was too preoccupied with motherhood to be a serious candidate. He also stated, erroneously, that Carmichael was expecting a child when she joined the firm. "If I'd known she was pregnant," he said, according to legal records. "I would never have hired her."

Not surprising, Carmichael didn't get the job. Instead, the firm hired a male from Rhode Island with less experience. After learning what was said at the meeting, she sued. Her 1992 complaint, first filed with the Mass achusetts Commission Against Discrimination, alleged gender bias and sexual harassment.

This month, in what legal experts call a precedent-setting decision, the state Su preme Judicial Court upheld a superior court ruling in Carmichael's favor, noting in the text that "dis crim i na tory animus was a factor in the decision not to hire her."

Written by Chief Justice Margaret Marshall, the decision fur ther clarified the burden of proof needed to sustain an allegation of discrimination in a so-called mixed motive case - a lawsuit in which two or more reasons may exist for a disputed action.

A spokesman for Wynn & Wynn could not reached for comment.

"In this case, Wynn & Wynn argued that Jill Carmichael wasn't hired because there were no job openings at the time," said Boston lawyer Howard Speicher, a partner at Davis, Malm & D'Agostine, which represented Carmichael.

"In the past, she would have had the burden of proving that she was not only discriminated against but that her employer's defense was false," he said.

That's no longer true in mixed motive cases. In stating the employer must now assume the bur den of proving that a lack of open ings or poor qualifications or some other factor was the sole reason for failing to hire, the Massachusetts high court leveled the legal playing field, giving employees a sorely needed weapon in the ongoing anti-discrimination battle.

Asserted Speicher: "It certainly gives employees more of a leg up than they've had."

The ruling's significance is not lost on Carmichael, now a principal of Carmichael & Zajac, a Taunton law firm, and the mother of four. She knows that despite a range of family-friendly policies from employers, many women still have reason to worry about the impact of pregnancy or child rearing on their jobs. Anxiety over motherhood is just as strong as it was 11 years ago, when Carmichael first encountered sexism in the workplace.

"When I was interviewed for the clerk position, I said I had a 6-month-old child and that I planned to have more," recalled Carmichael. "I mentioned it as a courtesy. I didn't want the fact that I had children to affect my job. But I found out later that the firm held two or three closed-door meetings to determine exactly when I became pregnant.

"The day I found out I wasn't going to be hired full time, I sobbed uncontrollably in the conference room in front of the person who was in charge of the law clerks," she said. "I was told that my evaluations were excellent but the position had been filled and there was nothing available in Fall River."

Pregnancy discrimination was not the only problem Carmichael encountered. During her tenure at the firm, a male associate repeatedly made disparaging remarks about an aggressive female employee and frequently commented on Carmichael's clothing and physique.

"He told sexual jokes daily, referring to himself as her master and she as his servant," wrote Justice Marshall. "He commented on her clothing and the outline of her undergarments, and admonished her for not wearing nylons when she was pregnant because she did not have `tan, shapely legs.' "

After returning from maternity leave after her second child, Carmichael asked the firm for permission to nurse her son in her office. To protect her privacy, she put a "Do Not Enter" sign on the door.

But the associate often barged in while she was nursing. Carmichael would place a chair against the door and sit in it. "I sat in that chair, with my back against the door and, to no avail, he would bang on the door and push the chair and try to get in," she said.

More than 10 years after Carmichael's experience, news from the frontlines remains troubling.

In New Hampshire, for example, the Commission on Human Rights sued a restaurant owner last year for refusing to reinstate a female clerk after she took a maternity leave. The commission found that the now defunct Toucan Restaurant in Portsmouth had a policy of firing women who became pregnant.

In San Diego, a jury last year awarded $1.5 million to a former deputy prosecutor who claimed she was transferred out of her position as a team leader after taking maternity leave with her third child. The defense said she was transferred because she had trouble arriving at work on time and needed a more flexible work schedule. The jury determined she was treated unfairly after she complained about the move.

In Chicago, meanwhile, stockbroker Marybeth Cremin claimed in a 1997 suit that a supervisor at Merrill Lynch forced her to take an administrative position after the birth of her fourth child. She said her boss assumed she would not be able to juggle the demands of rearing children with the demands of a high-powered career.

Such blatant discrimination may not be as common as it once was. But experts say working women with children face subtle forms of bias such as fewer opportunities and promotions and, as a result, lower pay.

Those cases, coupled with more blatant bias, have resulted in 3,500 discrimination complaints filed annually with the US Equal Employment Opportunity Commission.

"Twenty years after the passage of the Pregnancy Dis crim i na tion Act and more than 36 years after Title VII of the Civil Rights Act of 1964, it's shocking that women are still being faced with these forms of discrimination in the workplace," said Judith Lichtman, president of the National Partnership for Women and Families in Washington, D.C., a nonprofit legal advocacy and public policy organization.

When the organization recently polled dozens of former welfare mothers, it found that one in three had experienced some form of gender bias because of child-rearing responsibilities.

"The law says employers must treat men and women alike based on their ability or inability to do a job and not on their child-bearing capacities," noted Lichtman. "But unfortunately, some employers still haven't had a wake-up call."

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