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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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The New York Times has a long article today about pregnancy discrimination and it is certainly worth reading with one caveat.  While it is informative, I don't think it's entirely correct.

It starts off with this:

HERE’S a pop quiz: Which of the following would violate federal employment law?

1. Laying off a pregnant woman.

2. Laying off a woman on maternity leave.   

Pencils down. The answer is “neither.

I hate to disagree with the NY Times, but I think it's more accurate to say "it could be".

It's quite possible that laying off someone who is pregnant or on maternity leave is illegal under the Pregnancy Discrimination Act and to suggest otherwise is a bit misleading.

Just to set the record straight, the Pregnancy Discrimination Act, ("PAD"), which was an amendment to Title VII of the Civil Rights Act of 1964 provides that:

• An employer cannot refuse to hire a pregnant woman because of her pregnancy
• Pregnant employees must be permitted to work as long as they are able to perform their jobs
  
• Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII

As I have written about before, times of workforce reductions unfortunately create settings where discrimination is rampant.  It is an inescapable truth that when managers are given discretion to terminate employees, some bias may come into play. It is also a fact that EEOC claims are on the rise. When managers are given the opportunity to let people go, it is an opportunity to discriminate for:

• younger managers who don't like or who are uncomfortable with the "old timers" and replace them with younger cheaper workers
• men who think women should be at home instead of work
• whites who don't like blacks and other minorities

What's also true is that women who are terminated when they are pregnant can prove discrimination just like anyone else with a combination of proof showing:

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What happens when a woman gets fired because she has an abortion? The Third Circuit Court of Appeals, in Doe v. C.A.R.S Protection Plus decided that the discharge was gender discrimination and reversed the lower court which had thrown out the case.

The Jane Doe plaintiff worked as a graphics designer for CARS, a car insurance business with offices in several states. During her pregnancy, Doe learned that the baby had severe deformities. In accordance with her physician’s recommendation she and her husband chose to terminate the pregnancy.

Doe’s husband called CARS on his wife's behalf and asked for a week’s vacation for her.  According to his testimony  the request was approved.  CARS discharged Doe several days later  -- on the same day as the baby’s funeral.

In a question of first impression for the Third Circuit, the Court held that the Pregnancy Discrimination Act’s coverage extended to women who elected to terminate their pregnancies. In so doing, the Court relied on:

1. Precedent from the Sixth Circuit Court of Appeals in Turic v. Holland Hospitality , Inc.
2. EEOC guidelines ( which state that “a woman who is affected by pregnancy and related conditions must be treated the same as all other employee … and is therefore protected against such practices as being fired merely because she is pregnant or has had an abortion”) ;and
3. Language from the legislative history of the Pregnancy Discrimination Act ( “no employer may fire or refuse to hire a woman simply because she has exercised her right to have an abortion” and concluded:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may  not discriminate against a woman employer because she has exercised her right to have an abortion.

In comparing Doe to other employees who were temporarily disabled, the Court found evidence that Doe had been treated differently when she was fired instead of given leave.

Although we have held that the 'PDA does not require that employers treat pregnant employees better than other temporarily disabled employees '... the PDA does require that employers treat pregnant employees no worse.

The judgment of the district court was reversed and Jane Doe was given the right to have her day in court.

The opinion is certainly an important one for all working women. There is certainly no room in the law for discrimination in the workplace based upon a woman’s Constitutional right of privacy and freedom of choice. Fortunately there are some courts which agree.

Image: http://www.methodist.org.uk/static/interface/if_distressedwoman_05.07.jpg

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