This article discusses pregnancy discrimination and the
standard of proof required in all cases.
1. Disparate Treatment Discrimination Pursuant to Title VII and The Pregnancy Discrimination Act
An employee can assert that she was subjected to disparate treatment discrimination pursuant to Title VII and The Pregnancy Discrimination Act. Title VII makes it unlawful for employers to “discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s…sex…” 42 U.S.C. Section 2000e-2(a)(1). Lacoparra v. Pergament Home Centers, 982 F. Supp. 213 (S.D.N.Y. 1997). Title VII has been amended “to include pregnancy-based discrimination in Title VII’s prohibition of gender-based employment discrimination.” Id. at *221. Courts employ the three-prong burden shifting analysis of McDonnell Douglas to cases brought under the Pregnancy Discrimination Act.
To establish a prima facie case of pregnancy discrimination under Title VII, the employee must show that “(1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of unlawful discrimination.” Lacoparra at *221.
Employee Must be Pregnant or Have Related ConditionsThe Pregnancy Discrimination Act further provides that: “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. 42 U.S.C. 2000e(k).” Treuting v. Massachusetts Mutual Life Insurance Co., 1999 WL 200701 (D. Conn. 1999). “To establish a prima facie case of discrimination under Title VII [as amended by the PDA], the Plaintiff may prove her claim either through direct evidence, statistical proof or the test established by the Supreme Court in McDonnell Douglas.” Ensley-Gaines v. Runyon, 100 F. 3d 1220 at *1223 (6th Cir. 1996).
“Like other claims brought under Title VII…, a claim of pregnancy discrimination is subject to the familiar three-part burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 ((1973) and its progeny”. Ahmad v. Ann Taylor, Inc., 2000 WL 48849 (S.D.N.Y. 2000). See also, Quarantino v. Tiffany & Co., 71 F. 3d 58, 64 (2d Cir. 1995), vacated and remanded on other grounds, 166 F. 3d 422 (1999). Pursuant to this analysis, the employee must initially establish a prima facie case of pregnancy discrimination.
A female employee will clearly be a member of a protected class under the PDA, since she was pregnant. See, e.g., Bainlardi v. SBC Warburg, Inc., 1998 WL 556032 at *2 (S.D.N.Y. 1998). Thus, the employee satisfies the protected classification element. The employee must also demonstrate that she was qualified for her current position that she lost. Courts have held that in order to show that a plaintiff is qualified, the employee need only show that “she ‘possesses the basic skills required for performance of [the] job’.” Flores v. Buy Buy Baby, Inc., 118 F. Supp. 2d 425 at *430 (S.D.N.Y. 2000). See also, Visco v. Community Health Plan, 957 F. Supp. 381 at 386 (N.D. N.Y. 1997)(“Thus, on occasions when this Circuit has directly addressed the issue of the second prong, it has long and unequivocally held that a plaintiff need only show that she is qualified for the position.”). Previous performance reviews and comments by superiors can provide qualification evidence. In the event of a lack of complaints, disciplinary actions or warnings can also be used to demonstrate qualifications for the position. (See, Flores v. Buy Buy Baby, Inc., 118 F. Supp.2d 425 (S.D.N.Y. 2000)(lack of any complaints, disciplinary actions or warnings or problems with regard to plaintiff demonstrate that she possessed the necessary skills for the job and was therefore qualified for purposes of establishing a prima facie case).
Employee Must Show An Adverse or Negative Job ActionThe employee must also establish the third prong of a prima facie case, that she suffered an adverse employment action directly as a result of her protected membership classification, i.e. pregnant female. A wrongful termination will clearly constitute an adverse employment action. Additional adverse actions can include salary deductions and non-pecuniary actions such as negative performance reviews and reduced job responsibilities. The employer may argue the employee suffered no adverse employment action, due to a reorganization/job elimination of her position. The employee must demonstrate this explanation is pretextual and the real reason for her termination or adverse action was her pregnancy.
Employee Must Establish a Causal Connection Between the Pregnancy and the Negative Job ActionThe employee must establish the fourth element of a prima facie case, that there is a causal nexus between her pregnancy and the adverse employment actions she experience. For example, the employee can demonstrate that male employees were given more favorable treatment than she was, i.e. not terminated during a company wide reorganization.
Burden Shifts to Employer To Prove They Did Not DiscriminateOnce the employee’s prima facie case is successfully established, the burden shifts to the employer to articulate a legitimate explanation for her termination or adverse action. “If the plaintiff demonstrates a prima facie case, a presumption that the employer unlawfully discriminated against the employee is raised …and the burden of production then shifts to the employer ‘to articulate a legitimate, clear, specific and nondiscriminatory reason for discharging the employee’. Quarantino, 71 F. 3d at 64 (citing Gallo, 22 F.3d at 1226).” Kerzer v. Kingly Manufacturing, 156 F. 3d 396 (2d Cir. 1998).
Employee Final Burden is to Prove Employer’s Reason Is False or a LieThe employee must provide evidence which, if believed, would permit a jury to find that the employer’s proffered reason for termination or adverse action was pretextual. The employee must produce evidence which would permit a reasonable finder of fact (jury) to conclude “that [gender and pregnancy discrimination] played a motivating role in, or contributed to, the [employer’s] decision.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000)(quoting Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir.1997)); see also Donlon v. Group Health Inc., No. 00 Civ. 2190, 2001 WL 111220, at *4 (S.D.N.Y. Feb.8, 2001)(Mukasey, J)(quoting Gordon ); White, 2002 WL 776589 *10-11.
The employee must successfully assert that “pretext can be established by a showing that the ‘asserted neutral basis was so ridden with error’ that the [employer] obviously could not honestly have relied on it . . .[employee] may prevail at trial if, in addition to establishing a prima facie case, [she] persuades a reasonable jury that the reason advanced for [her] discharge, job elimination due to business priorities and organizational changes was unworthy of credence.” Dister v. Continental Group, Inc., 859 F.2d 1108, 1113 (2nd Cir.1988). The United States Supreme Court recently addressed the pretext proof issue in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (June 12, 2000). The Court’s holding sent a shockwave through many companies because it established a presumption of proof that favors all employees:
“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt.’ (citations omitted). Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. . . Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit a trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. 133, 147-148.
2. Retaliation for Engaging in Protected Activity
Pursuant to Title VII and the PDA.
An employee may also claim that she was retaliated for notifying the employer about pregnancy related actions, such as pregnancy leave requests. To make out a prima facie case for retaliation under either statute, the employee must show that:
- she participated in a protected activity, i.e. notification of pregnancy and requesting/obtaining leave of absence,
- the employer knew of this activity,
- the employee was subjected to wrongful termination, and
- there was a causal connection between pregnancy notification and leave of absence and wrongful termination or other adverse employment action.
See, Holt v. KMI- Communications, 95 F.3d 123, 130 (2d Cir.1996).
The last of these elements can be established: (a) “directly through evidence of retaliatory animus directed against a plaintiff by the defendant;” or (b) “indirectly by showing that the protected activity was followed closely by discriminatory treatment … or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct.” DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987)(emphasis in original). See also White v. Whitman, 2002 WL 776589, *11 (S.D.N.Y.). “The [PDA, FMLA and Title VII] makes it unlawful for an employer, ‘to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of any right granted or protected by this chapter.’” Lovejoy-Wilson v. NOCO Motor, 263 F.3d 208 (2d Cir.2001) (citing 42 U.S.C. Section 12203(b).)
In the event the employer asserts the employee did not engage in a protected activity because she failed to oppose any unlawful action while employed by the company, the employee should respond as follows. Her claims are analogous to a disabled employee’s protected requests for reasonable accommodations. The Second Circuit has held that a retaliation claim can be based on a request for reasonable accommodations. See e.g. Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999); Criado v. IBM Corp., 145 F.3d 437, 8 A.D. Cas. (BNA) 336 (1st Cir. 1998) (stating that leave may constitute reasonable accommodation); Rascon v. US West Communications, Inc., 143 F.3d 1324, 1334, 8 A.D. Cas. (BNA) 541 (10th Cir. 1998) (stating that “time for medical care or treatment may constitute a reasonable accommodation”); Dockery v. North Shore Medical Center, 909 F. Supp. 1550, 1560, 13 A.D.D. 740, 5 A.D. Cas. (BNA) 1443 (S.D. Fla. 1995) (recognizing that unpaid leave may constitute reasonable accommodation); Schmidt v. Safeway Inc., 864 F. Supp. 991, 996, 6 A.D.D. 1223, 3 A.D. Cas. (BNA) 1141 (D. Or. 1994) (reasonable accommodation may include leave of absence for treatment); Wilson v. Lemington Home for the Aged, 159 F. Supp. 2d 186, 12 A.D. Cas. (BNA) 1486, 7 Wage & Hour Cas. 2d (BNA) 611, 145 Lab. Cas. (CCH) P 34476 (W.D. Pa. 2001) (medical leave as form or reasonable accommodation; employee need not mention ADA or phrase “reasonable accommodation,”). See also Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999) (where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA.); Haschmann v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998). The EEOC interpretive guidance to the ADA states that a reasonable accommodation could include “additional unpaid leave for necessary medical treatment.” 29 C.F.R. Section 1630.2(o).
Once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to set forth the specific nondiscriminatory reasons it took the action alleged to be retaliatory. Slattery, 248 F.3d at 94-95. This burden is simply one of production. Reeves, 530 U.S. at 141. The employee must produce the aforementioned evidence which would permit a reasonable finder of fact to conclude “that retaliation ‘played a motivating role in, or contributed to, the employer’s decision.” ‘ Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000)(quoting Renz v. Grey Adver., Inc., 135 F.3d 217, 222 (2d Cir.1997)); see also Donlon v. Group Health Inc., No. 00 Civ. 2190, 2001 WL 111220, at *4 (S.D.N.Y. Feb.8, 2001)(Mukasey, J)(quoting Gordon ); White, 2002 WL 77 6589 *10-11.
Firing Pregnant Women Really Ticks Me Off! I have been litigating employment discrimination cases in federal court for a very long time, but pregnancy discrimination by employers really ticks me off. The U.S. Equal Employment Opportunity Commission also shares the same anger, making pregnancy cases a priority in their recent enforcement actions. The way I ...
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