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A woman who has had an abortion is protected from discrimination under the Pregnancy Discrimination Act, according to a recent decision by the 3rd U.S. Circuit Court of Appeals in Doe v. C.A.R.S. Protection Plus Inc. The ruling is the first time the court had addressed this issue specifically. Furthermore, in the same decision, the court discussed in detail the burdens of proof required under the PDA, which differ slightly from claims of sex discrimination under Title VII. Jane Doe worked as a graphic artist for C.A.R.S., which insures used cars. She worked directly for Fred Kohl, a part owner of the company. Her sister-in-law, Leona Dunnett, was the C.A.R.S. office manager. LEAVE POLICIES C.A.R.S. had, as the court called it, “less than compassionate leave policies.” Employees were given no personal or sick leave. After one year, employees were given five days vacation and those who stayed with the company for five years received five additional vacation days. More importantly, according to Kohl’s deposition testimony, if an employee was too ill to work, the employee or his/her spouse was required to call in personally to him. Doe learned that she was pregnant a little less than a year after beginning with C.A.R.S. A few months later, after a series of tests revealed severe abnormalities with her baby, Doe’s physician recommended that she terminate her pregnancy and Doe and her husband agreed. Significantly, Doe’s husband called the company every day during the testing process and received approval from Kohl for his wife’s absence. According to Doe’s husband, the day before the abortion, he spoke with Dunnett and Kohl and requested that his wife be permitted to take a week of vacation. Doe’s husband testified that Kohl approved this request. Following the abortion, a funeral was held for Doe’s baby. That same day, Kohl packed up Doe’s office and informed her that she was terminated. Kohl asserted that Doe was terminated for not having called in to inform him of her absence from the workplace. Doe brought suit under the PDA, claiming that she had been terminated for having had an abortion. The District Court granted summary judgment in favor of C.A.R.S. and Doe appealed. ABORTION COVERED BY PDA Initially, the court considered the language of the PDA, which defines the terms “because of sex” and “on the basis of sex” under Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” The regulations specifically advise that “a woman is . . . protected against such practices as being fired . . . merely because she is pregnant or has had an abortion.” Moreover, the legislative history to the PDA referenced protection against discrimination because a woman “exercised her right to have an abortion.” On this basis, the court found that the term “related medical condition” under the PDA “includes an abortion.” Under the PDA, the court found pregnant employees are not entitled to preferential treatment but, rather, must be treated “the same as non-pregnant employees who are similarly situated with respect to their ability to work.” A prima facie case under the PDA requires, in part, that “an employer have actual knowledge of an employee’s pregnancy.” As such, a plaintiff must “adduce evidence that she was pregnant and that the employer knew it.” A plaintiff must also prove that she was qualified for the job and that she suffered an adverse action. The fourth element to the prima facie case is proof of a nexus between the pregnancy and the adverse action. The court noted that most often, the requisite “nexus” is established through evidence of disparate treatment – a showing that the employee was treated less favorably than similarly situated employees not in her class. In this case, although Kohl testified that all employees were required to report absences to him on a daily basis, there was evidence that male employees with temporary disabilities were not held to this standard. In fact, Kohl’s secretary testified to a “separate set of rules” regarding absences without uniform enforcement. The court found that this evidence alone was sufficient to defeat summary judgment. INCONSISTENT LEAVE RULES It should be noted that Kohl had been inconsistent on the requirements of absences, and that this inconsistency was highlighted by him having “testified to the EEOC investigator” regarding the company’s requirements. It is unclear from the decision what type of “testimony” was taken by the EEOC, although this was presumably in the form of an affidavit submitted along with a position statement. In any event, the court also found questions of fact regarding whether Kohl had approved Kohl’s absences, which he denied. Furthermore, the court found that Kohl’s statement to Dunnett, Doe’s sister-in-law, that Doe “didn’t want to take responsibility” was “background evidence that may be critical to a jury’s determination of . . . [whether] the abortion was a factor in terminating Doe’s employment.” Finally, the court held that the timing of the termination, “just three working days after [Doe] notified Kohl she would have to undergo an abortion” was sufficient to establish the “causal connection” required under the prima facie case. Much of this same evidence was sufficient to raise a genuine issue for the jury as to whether C.A.R.S.’ reason for the termination was pretextual. As noted, the decision was the first time that the 3rd Circuit had found the PDA to cover abortions. On this basis, alone, the case is notable. This case can also be looked at as “the facts” setting up the decision. Objectively, it must be noted that C.A.R.S.’ policies and the manner in which Doe’s termination was handled could be considered as callous. While these factors did not drive the decision, they were noted by the court. CONSISTENCY IS KEY It is also a cautionary case for employers and their counsel. The case re-emphasizes the importance of consistently articulated and applied policies. It is a virtual certainty that summary judgment will be denied when there is evidence or, as in this case, testimony, that each employee has a “separate set of rules” for absences. It also appears as though Kohl’s submissions to the EEOC were inconsistent with his later deposition testimony. This is often the type of evidence noted by the court in its consideration of pretext and, from a defense perspective, should be avoided if at all possible. It is difficult to estimate the long-term implications of the finding that the PDA applies to women who have had abortions. Under the circumstances of the case, it is unclear why Doe was not eligible for leave under the Family and Medical Leave Act, which, for most employees, would protect the type of leave for which Doe was terminated. • Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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