June 2013

By: James B. Sherman, Esq.

A former employee of a home care agency is allowed to proceed to trial with her pregnancy discrimination claim against her employer, based on comments made by her supervisor. The United States Court of Appeals, in Hitchcock v. Angel Corps, Inc., reversed an earlier decision in favor of the employer. In doing so the court noted that upon learning the plaintiff was pregnant a supervisor allegedly treated her differently and asked her if she “was going to quit.” These allegations, coupled with the fact that the plaintiff was terminated only one month after revealing her pregnancy, should be heard by a jury according to the appellate court. Although the employer prevailed in the trial court by claiming the plaintiff was terminated for mishandling a situation with a potential client, the appellate court observed that the details of the defendant’s asserted reason for terminating the plaintiff evolved over time.

Besides asking the plaintiff if she was going to quit and giving her extra work, the supervisor was alleged to have had a history of showing animus towards pregnant employees. Upon learning of another employee’s pregnancy, the supervisor is accused of saying: “If I were you I would have an abortion,” to avoid attendance problems. Regarding one of the reasons given by the employer for why it discharged the plaintiff-that she “compromised the health and safety of [the] client”- the Court found this particularly hard to believe considering that the client in question turned out to have been dead for two or three days before being encountered by the plaintiff! The court held that this evidence was sufficient to sustain her claims.

Employers can take away several lessons from this case:

• When an employee announces she is pregnant it may be natural to assume she will miss at least some work and to want to make advance arrangements that work both for the employee and the employer’s operations. However, where the assumption is that pregnancy may cause the employee to quit working it probably is based upon bygone stereotypes of women staying home to raise their children while men work to support them. Not only are such stereotypes false in today’s society, they serve as evidence of discriminatory attitude toward pregnancy, as the court found in this case.
• A better practice when an employer wants to know whether and how an employee’s pregnancy (or other medical condition, disability, etc.) may impact an employee’s work, it is better to inquire only about the need for some time off work, not whether the employee is quitting work altogether.
• Perhaps surprisingly, the supervisor in this case who was alleged to have been so insensitive to the pregnancy of employees was herself a woman. This fact is of no consequence in court. Women can be liable for sex discrimination or pregnancy discrimination, just as a person of a certain race can be liable for discrimination based on that race and older managers may nevertheless discriminate based on age.
• Do not switch justifications for terminating an employee. In this case, the employer may have just terminated the employee because the situation with the potential client was an embarrassment and it needed a scapegoat. While this would be “unfair,” it wouldn’t be illegal. However, the fact that it gave vague, shifting reasons supported the plaintiff’s theory that the given reasons were not true, and that pregnancy discrimination was the real reason.
• Lastly, if an employer is going to fire someone for the manner in which they interacted with another it might be a good idea to first find out whether the other person was at the very least living at the time of the incident in question!