"Does Leaning In Make Legal Sense for Employers? Definitely."

With employment discrimination charges at a 15-year high, employers are seeing a particular increase in claims brought by workers who are pregnant or caring for young children or aging parents. A 2010 report by the Center for WorkLife Law at the University of California Hastings College of the Law shows that plaintiffs in these family-responsibility cases are more likely to prevail than plaintiffs in other types of employment discrimination cases, with average awards exceeding $500,000.¹ In one notable class action, a jury awarded $3.36 million in compensatory damages and an additional $250 million in punitive damages when it found discrimination against women in the employer’s pay, promotion, pregnancy and family leave policies. These trends raise the question of whether employers can better address sensitive issues relating to gender, pregnancy and caregiving responsibilities.

Some companies aim to desensitize their workforces to differences between men and women and thus train managers not to ask employees questions related to gender, pregnancy or caregiver responsibilities. But management experts — and legal counsel — are rethinking these practices, particularly in the wake of Facebook Chief Operating Officer Sheryl Sandberg’s book Lean In: Women, Work, and the Will to Lead, published in March 2013, in which Sandberg said she instead teaches managers “to encourage women to talk about their plans to have children and help them continue to reach for opportunities.” Yet, critics argue companies put themselves at litigation risk because managers will not know how to engage in these discussions without running afoul of anti-discrimination laws. Such concerns have been exacerbated by recent well-publicized demand letters received by technology companies from female employees allegedly denied promotions or terminated after “leaning in” at the workplace.²

Employers should consider the greater litigation risk of not engaging with employees on these issues. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, makes it unlawful for an employer to discriminate on the basis of pregnancy or pregnancy-related conditions. While Title VII does not prohibit discrimination against caregivers per se, under a theory referred to as “sex-plus” (i.e., sex plus another characteristic, such as caregiving), discrimination against working mothers has been held to violate Title VII even if the employer does not discriminate against childless women.³ Title VII also has been used to protect male employees’ rights to engage in family caregiving.⁴ Moreover, the Americans with Disabilities Act “association” provision protects employees from discrimination based on their relationship or association with an individual with a disability. Plaintiffs also are relying on a growing number of state and local statutes prohibiting discrimination based on pregnancy and family status or responsibilities.

Disparate Treatment. A plaintiff proves a disparate treatment violation under these anti-discrimination laws when the individual shows that he or she has been intentionally treated less favorably than others similarly situated on the basis of an impermissible characteristic. A survey of case law demonstrates that employers are more likely to succeed in disparate treatment cases when fulsome employee communication occurs. For example, in Chadwick v. WellPoint, Inc., 561 F.3d 38, 42-48 (1st Cir. 2009), the court of appeals reversed the lower court’s...