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According to statistics kept by the Equal Employment Opportunity Commission, there has been a 39 percent increase in the number of pregnancy discrimination charges filed since 1992, while the nation has seen a 9 percent decrease in the birth rate during that same time period. One reason for the disparity in those numbers might be wider application of the Pregnancy Discrimination Act (PDA). Passed in 1978, the PDA amended Title VII of the Civil Rights Act to make it unlawful for an employer to discriminate against an employee because of or on the basis of pregnancy, childbirth or related medical conditions. The PDA remains the primary tool for addressing pregnancy discrimination. The growth in these claims indicates the need for employers to become knowledgeable about preventing, responding to and understanding the basis of pregnancy discrimination claims. Employers must recognize and deal with the myriad of situations, from hiring to discipline and termination, in which response to an employee’s pregnancy can inadvertently lead to liability for violation of state and federal laws. HIRING One company learned the hard way that an employment offer to a pregnant woman should not include a discussion of her pregnancy. Celena Venturelli, who worked for a temporary employment agency, was assigned to work for ARC Community Services, a non-profit agency that provided social services to women. Because Venturelli performed well, ARC planned to hire her for a vacant full-time administrative position. Michael Collins, ARC’s comptroller, was assigned to discuss the position with Venturelli. During two separate meetings with Venturelli, Collins went into detailed discussion about Venturelli’s pregnancy and how Venturelli would deal with the responsibilities of the position in the event that she accepted the full-time job. He commented that some women changed their attitude about work once they had children. Venturelli was taken aback by the comments and interpreted them as an indication that ARC did not want to hire pregnant women. However, she did not report them to any other manager at ARC, and ARC continued to offer the full-time position to her, to begin after her child was born. After Venturelli’s departure from her temporary position, ARC continued to attempt to contact her about the permanent job, but without success. The company ultimately hired another woman, who was pregnant at the time, for the position. Venturelli ultimately sued under the PDA, accusing ARC of refusing to hire her because she was pregnant. The district court dismissed Venturelli’s complaint, and the 7th U.S. Circuit Court of Appeals affirmed that dismissal. The appellate court based its decision on the fact that there was no actual evidence, other than Collin’s remarks, that ARC refused to hire Venturelli because of her pregnancy. In spite of the fact that ARC was ultimately exonerated, the unfortunate series of events that led to the lawsuit were caused solely by the comments of one individual. According to the court, “Collins callously muddled the job offer by referring to his perceptions of mothers and their new babies.” Such circumstances underscore the importance of training supervisors and managers to be aware of the PDA and its implications related to the hiring process. DISCIPLINARY ACTIONS In Wallace v. Methodist Hospital System, the 5th Circuit overturned a jury’s verdict on behalf of an employee who claimed that the termination of her employment was based upon maternity leaves she had taken during her three years of employment. Veronica Wallace began working as a staff nurse at Methodist Hospital System in 1992. She took maternity leaves in both 1993 and 1994, and within a month of returning from her second leave, Wallace found that she was pregnant again and asked for a third leave. One month prior to taking that leave, Wallace was found to have violated hospital policy by replacing a patient’s feeding tube without a doctor’s permission. She also falsified the patient’s record by noting that verbal permission for the replacement had been obtained from the patient’s doctor when, in fact, no such permission had been obtained. Because each of the violations was deemed to be extremely serious, Wallace’s employment was terminated. Wallace filed suit against the hospital, and her case went to trial. Although a jury found for Wallace, the trial court granted the hospital’s motion for judgment in its favor, notwithstanding the verdict. The appellate court upheld that decision, finding that Wallace had failed to carry the burden of showing that the hospital’s proffered reason for her termination was pretextual. The PDA prohibits an employer from treating a pregnant employee less favorably than a non-pregnant employee. However, the act does not require an employer to overlook actions taken by a pregnant employee that would otherwise lead to disciplinary action of non-pregnant employees. TERMINATION As the 7th Circuit affirmed in Laxton v. Gap Inc., the PDA bars an employer from discharging an employee based on an unjustified presumption that the employee’s pregnancy will render her unable to fulfill her job expectations. Joanna Laxton was recruited by Gap Inc. in 1999 to become the general manager of an Old Navy store in Tyler, Texas. After accepting the employment offer but before beginning her duties, Laxton learned that she was pregnant. When Laxton informed her supervisor that she was pregnant and that her baby was due around Thanksgiving, the supervisor responded angrily that Laxton’s maternity leave during the holidays would create a problem for the company. During the following months, Laxton received two written warnings for violation of company policies and ultimately was terminated for “performance-related issues.” Laxton filed a lawsuit, alleging violation of Title VII and the PDA. At trial, a jury award Laxton over $500,000 in compensatory and punitive damages. Although the lower court granted Gap’s motion for judgment as a matter of law, the 7th Circuit reversed that decision, finding that Laxton had shown that the performance-based termination was a pretext for discrimination. The appellate court found that Laxton had shown a prima facie case of pregnancy discrimination and that the company had failed to provide documentation or testimony of actual performance problems. Therefore, Gap had not shown evidence of a legitimate business reason for its actions. Laxton also showed many of the policy violations to be trivial, and she brought evidence that Gap had violated its own corrective policy by failing to provide to her an opportunity to discuss performance problems with managers. According to the court, the fact that Gap had fired Laxton in spite of her experience and qualifications as a manager and had terminated her for a laundry list of questionable violations, virtually none of which Gap bothered to discuss with Laxton, supported Laxton’s claim that her termination was a pretext for pregnancy discrimination. The court specifically held that an employer is banned from discharging an employee on an unjustified presumption that the employee’s pregnancy would render her unable to fulfill her job expectations. VALID CLAIMS At least one federal court has held that an employee cannot establish a prima facie case of pregnancy discrimination without evidence that the employer had specific knowledge of the employee’s pregnancy. In Prebilich-Holland v. Gaylord Entertainment Company, an employer received serious and continuing complaints about an employee’s performance and met with her to discuss the issues. When the employee’s performance did not improve after that meeting, the company began the termination process, and a termination meeting was scheduled. Notice of the termination meeting was documented in the employee’s personnel file. On the day before the meeting was to occur, the employee told the company of her pregnancy and informed her supervisor that she would need time off for doctor appointments. Two days later the employee was terminated for failure to improve her performance. The employee filed a charge with the EEOC and a subsequent lawsuit in federal court, alleging pregnancy discrimination. The district court found that the proximity in time between the disclosure of pregnancy and the termination was sufficient to establish a prima facie case of discrimination. However, that decision was reversed on appeal by the 6th Circuit, which analyzed the issue in the context of an action under the ADA, where an employee must prove that the employer had knowledge of the disability to be liable for discrimination. The court reasoned that similarly, an individual claiming pregnancy discrimination must show specific knowledge of her condition in order to prove a nexus between that condition and the adverse employment action experienced. ADDITIONAL CONCERNS One of the difficulties in implementing and enforcing policies regarding the PDA is the act’s relationship to the Americans with Disabilities Act and the Family and Medical Leave Act. Knowledgeable employers review each situation in light of those laws, as well as under the PDA. For instance, in addition to family and medical leave based on the birth of a child, or in order to care for that child FMLA leave can be taken during a period of incapacity due to pregnancy or prenatal care. The FMLA provides that any employer who interferes with or denies any rights provided to an employee under the act is liable for damages. Employers should be aware of potential liability based on the “overlap” issue and should train and counsel their supervisory employees appropriately. Because certain pregnancy-related conditions in addition to childbirth can form the basis of a valid FMLA request or ADA request for accommodation, such requests should be consistently documented, reviewed and administered to avoid liability for both the employer and individual decision-makers. The growth in pregnancy discrimination claims indicates the need for vigorous and consistent education regarding and enforcement of the PDA by employers. In addition, employers should be aware of state laws related to pregnancy and childbirth (for example, some states, like New Jersey, provide additional leave for child care after childbirth). Although the PDA is a critical source of protection for women, it is also the source of legal liability for employers who insufficiently investigate, document and resolve claims raised by female employees. Maria Greco Danaher heads the employment and labor practice group at Dickie McCamey & Chilcote in Pittsburgh and regularly represents and counsels companies in employment related matters. For further information on avoiding employer liability and on other employment law issues, contact her at (412)392-5653 or via e-mail at ([email protected])

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