Delaware Employment Law Blog

Courts continue to expand what is protected under the Pregnancy Discrimination Act (PDA). The Third Circuit Court of Appeals, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, recently ruled that abortion is an activity protected by the PDA. Then, on Wednesday, the Seventh Circuit Court of Appeals ruled that in vitro fertilization (IVF) treatments were also covered under the Act.

The lower court had ruled that in vitro fertility treatments were not covered under the PDA on the ground that infertility affects both men and women. On July 16, the Appeals Court overturned that decision. The Appeals Court ruled that the plaintiff's in vitro fertilization — like many fertility treatments — was gender-specific because it was related to childbearing, which affects only women.
“Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women,” the ruling said.

Facts of the Case
The plaintiff took a leave of absence for IVF, a complicated procedure wherein eggs are extracted, fertilized and then surgically implanted in the womb.

She took one three-week leave of absence for the procedure and then applied for another three-week leave after learning that the first in vitro was unsuccessful. Meanwhile, the company had been reorganizing and decided to eliminate a sales secretary position: hers.

Her supervisor told her that termination was in her own best interest due to her “health condition,” according to the Seventh Circuit decision. He had consulted with an employee relations manager over eliminating the position, who took note of the plaintiff’s “absenteeism — fertility treatments.”
The employer argued that a regional sales manager unaware of the in vitro treatment had made the decision to eliminate the plaintiff’s position in favor of keeping the other, more qualified sales secretary.

Protection Under Other Federal Employment Laws

Fertility treatments may also be covered under the ADA and the FMLA. The U.S. Supreme Court has held that inability to procreate is a “major life activity,” therefore treatment to combat infertility is most likely protected and you must “accommodate” the employee as you would any other qualifying disability (such as cancer). Also, fertility treatments probably qualify as a “serious health condition” under the FMLA.

Bottom Line

This case continues to expand the definition of “pregnancy and related medical conditions” under the PDA. Given the likely coverage of fertility treatments by a number of federal laws, tread carefully when making employment decisions related to employees undergoing such treatments.

In addition, the facts serve to remind us of some basic employment law tenets:

(1) Focus on the performance, not the reason - there is no reason anyone (an HR person, no less!) needed to note “fertility treatments” in documentation related to performance;

(2) A “downsizing of one” is always tough to defend – if a termination is due to performance, make it about performance and make sure you have the documentation to support it; don’t call it a “downsizing” when only one person is affected;  and

(3) Beware of “benevolent intent” – many managers get into hot water making employment decisions based on their opinion of “what is best” for the employee. Remember the decision about “what is best” should be made only by the employee.

Pregnancy Discrimination is back in the news, courtesy of the U.S. Supreme Court's grant of certiorari in the case of AT&T v. Hulteen, No. 07-543.  Employees who took maternity leave, pursuant to the company's decades-old policy, were not given the same credit towards their pension as employees who took other kinds of disability leave.

The Pregnancy Discrimination Act (PDA) was not enacted until 1979 and, since then, AT&T’s maternity leave has been credited toward retirement, in compliance with the law. At issue is whether AT&T must now give female retirees credit for maternity leave taken from 1968-1976, preceding enactment of the PDA.

The Ninth Circuit held that the benefits system violated the PDA.  AT&T appealed and the Solicitor General recommended that cert be granted.  The SCOTUS Blog covers AT&T v. Hulteen and provides more details as well as links to the previous filings.

A ruling against AT&T would seem to be contrary to the Court’s recent ruling in Ledbetter v. Goodyear, related to the timeliness of discrimination claims whose effects may not be apparent for many years later. Further, it is generally held that statutes are not retroactive absent statutory language otherwise. In light of these precedents, a ruling in favor of the employees in this case may signal a real interest in this type of discrimination. Stay tuned!

Good leaders are difficult to come by.  Good leadership in government, some might say, is even more difficult to find.  I'd guess that some of the citizens of the Illinois town of Cahokia might just feel that way right about now. 

Cahokia Mayor, Frank Bergman, filed a workers' compensation claim after taking a fall down the stairs while fulfilling his duties as a civil servant. This claim has resulted in payment to Mayor Bergman for more than $20,000. 

And what's wrong with that, you ask?  Certainly, there is nothing un-leader-like about utilizing a government service for its intended purpose. 

But, the trouble here is, Mayor Bergman appears to be an unusually clumsy government official. This was his fourth workers' comp claim since he began working for the small town. In all, the Mayor has collected no less than $145,000 in workers' comp payouts since he came to work for local government in 1986.  The Mayor's annual salary is $40,000. 

Well, maybe the Mayor can try to avoid walking under ladders and crossing paths with black cats in the future.  Surely, bad luck must be to blame for his ongoing series of unfortunate accidents. 

Source: Chicago Tribune:  Small-town mayor gets $20,000 for his 4th workers' compensation claim

The Third Circuit, which covers Delaware, has ruled that the Pregnancy Discrimination Act provides a cause of action to an employee fired for having an abortion.  Although the case involves an unusual set of facts, it serves as an important reminder that compassion provides rewards beyond good karma – it can keep you out of court.

Doe v.  C.A.R.S. Protection Plus, Inc.

After learning that there might be problems with her pregnancy, the plaintiff, “Doe,” shared the information with her employer. Tests showed severe deformities and, at her doctor's recommendation, she had an abortion. On the day of the funeral ceremony, three days after the abortion, Doe was terminated.

The employer asserted that Doe failed to follow company policies with regard to her absence from work during her medical procedure and in the days following.   Doe presented evidence that her husband had called in to arrange the time off.

The employer had what the court called a “somewhat less than compassionate leave policy.” Employees were given no personal or sick leave. After one year on the job, employees were given five days’ paid vacation. Any time taken off during a work day was to be deducted from the employee’s vacation time or be unpaid. When employees were out sick, the employee or spouse had to call in on a daily basis.  But evidence was presented that showed not all employees were treated the same with respect to the daily call-in rule.

An Abortion Is a Protected Activity Under the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII of the Civil Rights Act of 1964 and states that discrimination on the basis of “sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA does not require preferential treatment for pregnant employees but mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.

Doe's allegations did not make for a typical pregnancy-discrimination claim. She did not claim, for instance, that she was discriminated against because she was pregnancy or that she had been fired while on maternity leave. Instead, she argued that she was discharged because she underwent a surgical abortion. Whether or not protections generally afforded pregnant women under the PDA also extend to women who elect to terminate their pregnancies was an issue that had not been decided in the Third Circuit.

The EEOC has taken the position that it is an unlawful employment practice to fire a woman because she had an abortion.  This was also the position taken in an early decision in Delaware's federal court.  Referencing both sources, the Third Circuit held that abortion is protected conduct under the PDA.

Evidence of Discriminatory Intent

The Court found enough evidence to refute the employer’s stated non-discriminatory reason for termination and permitted Doe’s claim to proceed to trial.  The evidence persuasive to the Court included: (1) daily call-in rule was not enforced with other employees; (2) another employee stated that Doe’s supervisor (who fired her) stated that Doe “didn’t want to take responsibility,” possibly in reference to her abortion; and (3) Doe was fired only three working days after the abortion.

Lessons for All Employers

Abortion does not often arise as part of a discrimination (or any other) claim against an employer because such a procedure is often kept private by the employee.  An employer cannot discriminate on the basis of conduct that it knows nothing about.  Also, the facts in this case, where the baby was wanted, and the employee had abortion for medical reasons, may be somewhat rare.

Nevertheless, the lessons from this case are applicable to many types of discrimination claims and provide a good reminder for employers. Simple changes to the employer’s policies and decision-making procedure would have resulted in a dramatically different outcome.

1. Make your leave policies reasonable. If humanity is not enough to persuade you on this point, then the risk of litigation should. It is clear that this employer’s draconian leave policy won no favors with the court, and certainly would not have won any points with a jury. Moreover, where leave policies  are so unreasonable that practically no one can abide by them, exceptions will be made routinely. When exceptions are made, subjectivity comes into play and it can be very difficult to defend why exceptions were made in some cases and not others.

2. Disseminate your policies, and enforce them consistently. Inconsistent treatment gets the employee past the first hurdle of any discrimination claim.

3. Never forget to take timing into account with any serious employment action. If you are considering taking an adverse employment action directly following some protected activity, which, in Delaware, now includes an abortion, think twice. Consider giving the employee a second chance and let some time elapse before taking action. Again, if benevolence does not lead you in the right direction here, know that many a discrimination case was moved onto trial because of suggestive timing.

Doe v.  C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir. May 20, 2008).

The Third Circuit, which covers Delaware, has ruled that the Pregnancy Discrimination Act provides a cause of action to an employee fired for having an abortion.  Although the case involves an unusual set of facts, it serves as an important reminder that compassion provides rewards beyond good karma – it can keep you out of court.

Doe v.  C.A.R.S. Protection Plus, Inc.

After learning that there might be problems with her pregnancy, the plaintiff, “Doe,” shared the information with her employer. Tests showed severe deformities and, at her doctor's recommendation, she had an abortion. On the day of the funeral ceremony, three days after the abortion, Doe was terminated.

The employer asserted that Doe failed to follow company policies with regard to her absence from work during her medical procedure and in the days following.   Doe presented evidence that her husband had called in to arrange the time off.

The employer had what the court called a “somewhat less than compassionate leave policy.” Employees were given no personal or sick leave. After one year on the job, employees were given five days’ paid vacation. Any time taken off during a work day was to be deducted from the employee’s vacation time or be unpaid. When employees were out sick, the employee or spouse had to call in on a daily basis.  But evidence was presented that showed not all employees were treated the same with respect to the daily call-in rule.

An Abortion Is a Protected Activity Under the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII of the Civil Rights Act of 1964 and states that discrimination on the basis of “sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA does not require preferential treatment for pregnant employees but mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.

Doe's allegations did not make for a typical pregnancy-discrimination claim. She did not claim, for instance, that she was discriminated against because she was pregnancy or that she had been fired while on maternity leave. Instead, she argued that she was discharged because she underwent a surgical abortion. Whether or not protections generally afforded pregnant women under the PDA also extend to women who elect to terminate their pregnancies was an issue that had not been decided in the Third Circuit.

The EEOC has taken the position that it is an unlawful employment practice to fire a woman because she had an abortion.  This was also the position taken in an early decision in Delaware's federal court.  Referencing both sources, the Third Circuit held that abortion is protected conduct under the PDA.

Evidence of Discriminatory Intent

The Court found enough evidence to refute the employer’s stated non-discriminatory reason for termination and permitted Doe’s claim to proceed to trial.  The evidence persuasive to the Court included: (1) daily call-in rule was not enforced with other employees; (2) another employee stated that Doe’s supervisor (who fired her) stated that Doe “didn’t want to take responsibility,” possibly in reference to her abortion; and (3) Doe was fired only three working days after the abortion.

Lessons for All Employers

Abortion does not often arise as part of a discrimination (or any other) claim against an employer because such a procedure is often kept private by the employee.  An employer cannot discriminate on the basis of conduct that it knows nothing about.  Also, the facts in this case, where the baby was wanted, and the employee had abortion for medical reasons, may be somewhat rare.

Nevertheless, the lessons from this case are applicable to many types of discrimination claims and provide a good reminder for employers. Simple changes to the employer’s policies and decision-making procedure would have resulted in a dramatically different outcome.

1. Make your leave policies reasonable. If humanity is not enough to persuade you on this point, then the risk of litigation should. It is clear that this employer’s draconian leave policy won no favors with the court, and certainly would not have won any points with a jury. Moreover, where leave policies  are so unreasonable that practically no one can abide by them, exceptions will be made routinely. When exceptions are made, subjectivity comes into play and it can be very difficult to defend why exceptions were made in some cases and not others.

2. Disseminate your policies, and enforce them consistently. Inconsistent treatment gets the employee past the first hurdle of any discrimination claim.

3. Never forget to take timing into account with any serious employment action. If you are considering taking an adverse employment action directly following some protected activity, which, in Delaware, now includes an abortion, think twice. Consider giving the employee a second chance and let some time elapse before taking action. Again, if benevolence does not lead you in the right direction here, know that many a discrimination case was moved onto trial because of suggestive timing.

Doe v.  C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir. May 20, 2008).

The so-called “anti-Mommy bias” has garnered a lot of attention recently. A type of workplace discrimination, “anti-Mommy bias” is also known as maternal profiling, or family responsibility discrimination. (See this recent article in the Cincinnati Enquirer and my earlier post on Family Responsibility Discrimination).

Groups such as the Center for WorkLife Law and 9to5, National Organization of Working Women, have reported alarming statistics regarding the increase in this type of discrimination. Kohl’s was recently hit with a multi-million dollar verdict (for allegedly discriminating against one of its managers because she was a mother.

Nevertheless, a recent survey suggests that the mommy bias may be more fiction than reality. According to the survey, only 15% of mothers say that becoming a mother has had a negative impact on their career, while 65% say that it has had no impact on their career path. If these survey results are correct, the problem may not be as widespread as it seems.

Nonetheless, given the national attention to this topic, and the EEOC’s focus on it (see EEOC’s Guidance on Caregiver Discrimination), I expect we will continue to see a rise in these types of claims. For tips on avoiding this type of claim, see the free corresponding handout, which can be downloaded from my prior post.

[H/T to Ohio Employer’s Law Blog]

Interviews are the usual starting line for pregnancy-discrimination suits and, more recently, FRD claims. I often get questions from clients or seminar attendees about the perils of interview questions.  A common theme is why is it that they shouldn't ask candidates about their family, i.e., spouse, kids, etc. 

It seems natural. "Oh, I see you volunteer at the North East community center.  My kids take swimming lessons there.  Do your kids take any classes there?" Heck, I can give you a real-life example that happened to me last week. 

I was at the local greeting-card store.  As I was checking out, the [female] employee looks up and says enthusiastically, "Do you have any little ones at home?" 

I nearly choked on my Lifesaver.  I kid you not.  (No pun intended, really).  I stood there, mouth open, speechless. 

She turned around and grabbed a toy Schnauzer from a counter lined with little stuffed animals.  "You get one of these for free for a purchase of $20 or more."  I lifted my chin off the ground and nodded while she stuffed the toy toy (ok, pun intended) into my shopping bag. 

The employee was probably all of 23 years old.  She had no intention of forming opinions of me based on my answer to to her question.  She was just trying to give me the free toy.  But the question caught me off my guard. 

I can almost guarantee that if you went back to the store and asked her about it, she would have positively no idea who I was--one of many customers she'd seen that night.  She certainly would not recall what she'd said to me. 

It's that easy.  Despite best intentions, it is so easy for an interviewer to ask a question that leads to a lawsuit.

Take the Pregnancy Discrimination Quiz at HR Hero and find out.

The HRhero.com website says this about the quiz:

Pregnant employees and those returning from maternity leave have rights regarding their employment. Check your knowledge of these rights by deciding how you would handle certain scenarios and then choosing the best answer.

The quiz was written by our own Adria Martinelli, who co-edits the Delaware Employment Law Letter with William W. Bowser and Scott A. Holt. 

Last month, Adria presented an audio conference on pregnancy discrimination, Pregnancy in the Workplace: Managing FMLA, ADA, and PDA Issues.  Adria also co-presented with Bill Bowser another terrific audio conference on pregnancy discrimination, Managing Pregnant Employees.  For more information about the conferences, see http://www.hrhero.com/audio/pregnancy/

Maternal Profiling (a subset of Family Responsibilities Discrimination, "FRD"), is employment discrimination against a woman who has, or will have, children.  Firing a newly pregnant employee. Interview questions designed to elicit details about child-care arrangements.  Just in time for Mother's Day, here are some key points for employers about this type of workplace discrimination.

Profiles of Maternal Profiling

In late April 2008, ABC News aired a piece on World News With Charles Gibson about Maternal Profiling.  As a follow-up to the piece, the ABCNews website posted an article called, Are You a Victim of Maternal Profiling, featuring women from Pennsylvania who had personally experienced this type of discrimination.

One woman believed that she was having trouble landing a new job because she was the mother of three.  She indicated that interviewers would often ask her outright whether she had any children.  She said that one employer told her that it would cost too much in health care.

Can He Ask That?

Can employers ask candidates whether they have children, or whether they have adequate child-care arrangements?   The answer is "yes," much to the surprise of many, including many of my HR clients.  Some states do have laws that prohibit these questions from being asked during job interviews.  But neither Delaware nor Pennsylvania are included among them.  So the short answer is, Yes, employers may lawfully ask job candidates about their "family status," including questions about whether or not the applicant has children, is married, etc.

Like Mom Always Said, "Just because your friends jump off a cliff doesn't mean you have to!"

We teach a lot of seminars.  We counsel a lot of employers.  We answer a lot of questions.  And I can say with great certainty that we would never, ever, ever, advise our clients to ask something as foolish as "Are you planning to have children?" to anyone, and certainly not to a potential or current employee!

Just because it's legal doesn't mean it's smart, right?  No good can come of these questions.  So don't ask them.  Just don't do it. 

Pregnant Spanish Defense Minister Carme Chacon reviews troops in Madrid

* * * *
Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, "Questions About Pregnancy," regarding pregnancy discrimination and Spain’s pregnant defense minister.

See my earlier post, “More Than Hollywood Noticing Baby Bump” regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you're prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don't discuss an applicant's pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she's pregnant, congratulate her. Don't start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee's current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee's pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.

Page D1 of today’s Wall Street Journal reports that:

A spike to record levels in pregnancy-discrimination complaints to regulators suggests more women are speaking up about suspected workplace bias.

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.

And that "may be only the tip of the iceberg," an EEOC spokesman says. The agency also received 20,400 pregnancy-bias inquiries at its call center last year, the center's first full year of operation; that doesn't include thousands more walk-ins asking about the same topic at fair-employment offices. An advocacy group, 9to5, National Association of Working Women, also is seeing an increase in pregnancy-bias calls on its hotline.

I have seen a huge surge in pregnancy discrimination claims in my practice as well. The WSJ attributes the groundswell to “both changing demographics and a new activism among mothers.” Employees’ awareness of the law in this area may have been further heightened by the EEOC’s Guidance on Discrimination of Workers with Caregiving Responsibilities, issued in May of 2007. The EEOC’s guidance devoted considerable attention to pregnancy discrimination claims.

I will be speaking on pregnancy discrimination at several upcoming seminars. Click on the links to learn more about opportunities to learn on this important topic: Pregnancy in the Workplace: Manage FMLA, ADA, and PDA Issues Audioconference on April 8 - learn about pregnancy discrimination from the comfort of your own desk! The Advanced Employment Issues Symposium on September 25-26 in Las Vegas, and October 16-17 in Nashville, TN offer additional opportunities to learn more about pregnancy discrimination.