So You Want to Have a Second Child? Second Child Bias and the Justification Suppression Model of Prejudice in Family Responsibilities Discrimination
Kyle C. Velte
Texas Tech University School of Law; University of Denver Sturm College of Law
March 19, 2013
U Denver Legal Studies Research Paper No. 13-14
Traditionally, advocates for women discriminated against in the workplace have asserted legal claims based on theories of sex discrimination, namely that such employment discrimination was occurring to women because they were women. In the past decade, however, a new theory of employment discrimination against women who are mothers has emerged. The umbrella term “Family Responsibilities Discrimination” encompasses the wide array of ways in which employers discriminate against caregivers in the workplace. These theories assert that such discrimination is occurring not just because these employees are women but because they are mothers. While still framed as “sex discrimination,” claims asserted under the umbrella of Family Responsibilities Discrimination argue that such discrimination is based on impermissible gender stereotypes concerning the culturally-assigned role of “mother.”
This Article asserts that a discrete form of Family Responsibilities Discrimination is emerging in the workplace. This discrimination is called the “Second Child Bias” and results from a new stereotype, which I call the “Second Child Stereotype.” The Article explains that, while no court has expressly recognized employment discrimination based on the Second Child Bias, such a claim is on solid doctrinal footing based on prior precedent construing Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family Medical Leave Act, and various state and local laws. The Article then posits that the cause of the Second Child Bias is a psychological phenomenon known as the Justification Suppression Model of Prejudice.
The Article concludes that it is both legally and normatively important to recognize and name the Second Child Bias as a discrete and unique sub-set of Family Responsibilities Discrimination. The naming of the Second Child Bias, and the underlying Second Child Stereotype, will advance the larger goals of Family Responsibilities Discrimination litigation and scholarship: Making factually and legally cognizable what presently are merely normative claims of working mothers with two children and ending employment discrimination against them. The Article advances these goals by adding to the continuing discussion about the force with which federal and state anti-discrimination laws should push back the cultural expectations that create categorical gender and caregiving roles for men and women.
Number of Pages in PDF File: 48
Date posted: March 21, 2013