As has been addressed previously in this blog, the Equal Employment Opportunity Commission (“EEOC”) has placed an emphasis on pursuing complaints of pregnancy discrimination as announced in its Strategic Enforcement Plan (see the post here). Recently the EEOC and the plaintiffs’ bar have filed cases at an increased rate against employers who have allegedly discriminated against pregnant women in the workplace. It goes without saying that such suits can be costly to defend and to ultimately pay if they are successful.
In the wake of this increased litigation, employers may feel that they cannot take warranted adverse employment action against an employee who has announced she is pregnant for fear of litigation and judgment. However, two recent cases originating in the 6th Circuit Court of Appeals serve to confirm that they law has not changed and that employers can prevail against claims of discrimination when they can prove that their actions are based on valid, non-discriminatory reasons.
In Madry v. Gibraltar National Corporation, Madry (the employee-plaintiff) took FMLA leave from October 2008 to February 2009 for her pregnancy. When she inquired about returning, she was informed that she was being laid off because of a lack of work. She then sued claiming that she was terminated in violation of federal law. Gibraltar was granted summary judgment at the district court level and the U.S. Court of Appeals for the Sixth Circuit affirmed the decision on May 16, 2013. According to the Court, Gibraltar “offered evidence that its legitimate, nondiscriminatory reason for failing to restore Madry’s employment was a lack of work caused by a downturn in business. Gibraltar has provided economic, production, and labor data to support its position.” The Court further stated that, pursuant to the FMLA, no employee is entitled to “any right, benefit, or position of employment other than…[that] to which the employee would have been entitled had the employee not taken the leave.” Simply put, an employee returning from FMLA leave is not entitled to restoration unless he or she would have continued to be employed if they had not taken FMLA leave. Thus, the Court confirmed the state of the law in the pregnancy context.
In Megivern v. Glacier Hills Incorporated, an employee of a nonprofit senior living facility sued her employer alleging her employment was unlawfully terminated on the basis of her pregnancy. Two weeks after announcing her pregnancy, Megivern was placed on a performance improvement plan. Five weeks after that, she was fired for failing to improve her performance status. The district court found that the only evidence that weighed in Megivern’s favor was the temporal proximity of her dismissal to the announcement of her pregnancy and that the employer had documented ongoing problems with Megivern’s work. Again, the U.S. Court of Appeals for the Sixth Circuit affirmed the district court’s summary judgment. In both instances the employer had well-documented evidence to support their termination actions. In conclusion, despite the increased emphasis on claims of pregnancy discrimination, the law is clear that an employer can take adverse employment action against a pregnant or recently pregnant employee provided the reason for that action is non-discriminatory can be proven so.
 Madry v. Gibraltar National Corporation, 2013 WL 2097357 (6th Cir. (Mich.)).
 Megivern v. Glacier Hills Incorporated, 2013 WL 2097373 (6th Cir. (Mich.)).
Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at email@example.com or at (859) 231-8780.
This article is intended as a summary of federal law and does not constitute legal advice.
Earlier this week, we gave you an overview of the issues that, according to a recent draft of its Strategic Enforcement Plan (“SEP”), the EEOC is likely to target in the coming years. One of the emerging issues highlighted in that draft relates to pregnancy discrimination, specifically, situations which force women into unpaid pregnancy leave after being denied accommodations routinely provided to similarly situated employees. In lock step with the EEOC’s express priorities, the following relevant cases have emerged over just the last few months:
EEOC v. Bayou City Wing - Pursuant to a policy in its employee handbook, Bayou City Wings laid off eight female employees after the third month of their pregnancies. At least one employee was terminated despite providing a note from her doctor indicating that she could work up to the 36th week of her pregnancy without any restrictions. Bayou City Wings argued that keeping a pregnant employee pas the third month would “be irresponsible in respect to her child’s safety” and would jeopardize his position with the company “for not following procedures.” The EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial.
EEOC v. Quest Intelligence Group – Tabitha Feeney was fired from her security officer job after taking maternity leave. Feeney had worked as a security officer for Quest for nearly one year, prior to her leave. After her leave, she contacted Quest to return to work, and the employer told Feeney that there was no work available. Quest indicated to Feeney they would bring her back if any positions opened up, but they never called. The EEOC’s investigation showed that the company had solicited and hired several male employees after Feeney’s request to return to work. EEOC filed suit, seeking lost wages, damages for emotional distress, and punitive damages, as well as injunctive relief such as training for company managers and employees, and compliance monitoring by the EEOC.
EEOC v. J’s Seafood, Panama City, Florida – J’s seafood restaurant laid off two pregnant waitresses because, as alleged by the EEOC, “their pregnancies caused them to be a liability to the company.” Both employees were hired in June 2011, and fired in October 2011, after the restaurant became aware of their pregnancies. The EEOC filed suit in U.S. District Court for the Northern District of Florida, seeking monetary damages, including back pay, compensatory and punitive damages, reinstatement and injunctive relief.
EEOC v. Muskegone River Youth Home - The EEOC claims that the Muskegone River Youth Home policy requiring “employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing work” is a form of pregnancy discrimination that violates the Pregnancy Discrimination Act, a part of Title VII of the Civil Rights Act. The EEOC seeks an injunction prohibiting Muskegon from maintaining the relevant policy.
EEOC v. Chemcore - Settled on September 21, 2012,Chemcore Industries, Inc. agreed to pay employee Marie Simmons $30,000 after firing her within hours of learning she was pregnant. Beyond the monetary award, a consent decree included provisions for equal employment opportunity training, posting of anti-discrimination notices, and reporting of internal discrimination complaints.
In addition to the EEOC’s focus on pregnancy discrimination, legislation was proposed earlier this year in the U.S. Senate, which would require employers to reasonably accommodate pregnant employees and applicants. The Pregnant Workers Fairness Act, introduced by Sens. Bob Casey (D-PA) and Jeanne Shaheen (D-NH), would also require reasonable accommodations for those limited by childbirth or related medical conditions. The bill includes a hardship exception for employers. Additionally, the bill makes it unlawful to deny employment opportunities to a pregnant employee or applicant because of the required reasonable accommodation, or to require that a pregnant employee take leave if she can otherwise be reasonably accommodated during her pregnancy. The bill also reiterates that employers may not take adverse employment action based upon pregnancy or the taking of leave for pregnancy related reasons. The bill also specifically directs the EEOC to issue regulations that identify and clarify some reasonable accommodations related to pregnancy and childbirth. Currently employers are prohibited from taking adverse employment against an employee because she is pregnant, and there are also some protections available under the Americans with Disabilities Act for employees with pregnancy complications, but they are not currently required to reasonably accommodate employees with regular pregnancies.
Given the recent focus on the treatment of pregnant employees, it may be an important time to evaluate whether your employment policies and actual workplace practices – written or unwritten – adversely impact pregnant employees? If you aren’t sure, now may be a time to revisit your employment policies and management training procedures.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at firstname.lastname@example.org or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years. That, however, does not mean that the cause of action is dead. Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor. Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action. Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or email@example.com