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Awareness of Pregnancy Discrimination Law Sets Stage For Punitive Damages

When you litigate a discrimination case, you never know for sure when you’re going to recover punitive damages. For those of us who represent employees, the Eighth Circuit Court of Appeals -- in the case of  EEOC v. Siouxland Oral Maxillofacial Surgery Assoc., L.L.P. decided last week -- made that job far easier.

What Happened In The Case

The case involves two women and their experiences at Siouxland, a medical clinic in South Dakota specializing in oral and maxillofacial surgery. 

The First Pregnancy Discrimination Victim

Richelle Dooley, was hired in December of 2001 and started work in January 2002. The day after she began, she filled out health benefit forms.

At that time, she told her supervisor that she was pregnant and that her baby was due in July. "Don't worry," the supervisor said, "we can hire a temp. while you're out."

The supervisor told two of the partners including the managing partner, Dr. Harvey Lee Akerson, about Dooley's pregnancy. Akerson decided that Dooley had to be terminated.

According to Kathy Fjellestad, Siouxland's business manager, this is what he said:

[T]he young lady we just hired is going to have a baby this summer. She isn't going to be available to work. It doesn't make any sense to begin training her.. when she won't be able to work the summer ... [W]e are going to have to let her go.

Fjellestad informed Akerson that Siouxland could not terminate Dooley because of her pregnancy. Akerson decided to fire her anyway.

He told Dooley that "her baby was going to be born during our busy season" and if they had known she was pregnant they would not have hired her.'"

The Second Pregnancy Discrimination Victim

In March of 2002, Angie Gacke interviewed for a position at Siouxland. During the interview she told the interviewers : "I don't know if this is going to be a problem or not, but I'm four months pregnant."

Shererena Kost, supervisor of  Siouxlands's surgical staff said:

Yes, it's a problem. Your are just going to end up causing more work for everybody else than you will be helping them.

One of the other interviewers recalled Kost saying:

Because of her pregnancy occurring at the time it was going to be occurring, that it would be best if she just continue her pregnancy, have the baby, have her maternity leave, and then we would talk.

Kost wrote on her resume that she was:

• overqualified for job
  
• needed insurance
  
• "4 months pregnant!"

Kost informed Gacke later that day that she did not get the job. As set forth in the opinion:

Kost was aware throughout this process that discriminating on the basis of pregnancy was illegal.

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Age Discrimination Claimed For Failure to Rehire Former Employees

The Equal Employment Opportunity Commission (EEOC) had hearings last month on recent and alarming developments in age discrimination including the effect on older workers of widespread layoffs, threats to employee benefits, and controversial recent court decisions.

In keeping with its commitment to aggressively enforce the Age Discrimination in Employment Act (ADEA) the Commission announced on Thursday that it filed an age discrimination lawsuit against AT&T and a number of its subsidiaries.

A successful outcome, which is no doubt years away, would be a huge victory for older workers.

About The Case

AT&T, like many companies, offered various retirement incentive programs over the last few years, in order to reduce its workforce. In those types of programs, employees who meet the qualifications (usually a combination of age and years of service) are offered enhanced severance packages if they voluntarily leave the company.

Some of those employees later applied for openings at the company, but were not hired because they had previously participated in the program.

Since October of 2006, AT&T has maintained a policy which prohibited hiring employees who retired under these plans.

The suit maintains the AT&T’s no-hire policies have a disparate impact on employees and applicants for employment who are age 40 and over in violation of the ADEA.

The suit further maintains that AT&T has no legitimate reason or purpose for this policy.

Disparate Impact Lawsuits

Generally speaking, there are two types of employment discrimination cases involving protected classes (age, race, gender, national origin, religion, disability, veteran status) of individuals.

1. Disparate treatment cases:

• involve proof that an individual was treated differently/discriminated against because of his/her protected characteristic

• requires proof (with either direct or circumstantial evidence) of intentional discrimination

2. Disparate impact cases :

• involve the company’s use of a neutral policy which adversely/more harshly affects a protected group

• proof of intentional discrimination is not required

• the plaintiff need only prove that the policy, while neutral on it’s face, has a disparate impact on a protected group when applied to current or prospective employees

• employer must prove a legitimate business reason (a reasonable factor other than age) for the discriminatory policy

Disparate impact litigation was widely used in the 1970’s to combat race discrimination, particularly in the South. It has also been used to challenge various policies and practices which have adversely affected women in the workplace.

It wasn’t until fairly recently that the Supreme Court recognized the use of a disparate impact analysis as a way to prove age discrimination.

Therefore, there are very few cases on this topic, and none that I know of which has challenged a company’s policy of not hiring former  employees who accepted severance packages, voluntarily retired, and then later applied for open positions.

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