William W. Bowser, Editor; Scott A. Holt and Adria B. Martinelli, Associate Editor
Young, Conaway, Stargatt & Taylor

Vol. 13, No. 7
July 2008

WRONGFUL TERMINATION

Court rules that PDA extends to abortion

The Third U.S. Circuit Court of Appeals (which covers Delaware) recently ruled that an employee fired for having an abortion has a claim under the Pregnancy Discrimination Act (PDA). Although it presents unusual facts, the case serves as an important reminder that compassion for your employees provides rewards beyond good karma ― it can keep you out of court.

Facts

An employee, "Jane Doe," learned that there might be problems with her pregnancy several months after she found out she was expecting and told her employer. After tests revealed that the fetus had severe deformities, she had an abortion on her doctor's recommendation. On the day of the funeral, three days after the abortion, she was terminated.

The employer asserted that Doe failed to follow company policies when reporting her absence from work during her medical procedure and in the days following it. However, she 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, they received five days' paid vacation. Any time taken off during a workday was to be deducted from an employee's vacation time or be unpaid. When an employee was out sick, she or her spouse had to call in daily. Evidence showed, however, that all employees weren't treated the same with respect to the daily "call-in" rule.

Unique PDA case

The PDA, an amendment to Title VII of the Civil Rights Act of 1964, states that discrimination on the basis of "sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." The Act doesn't require preferential treatment for pregnant employees but mandates that employers treat them the same as nonpregnant employees who are similarly situated in their ability to work.

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

Citing a Delaware case dealing with a woman who had publicly advocated a woman's right to choose abortion and the Equal Employment Opportunity Commission's position that it's an unlawful employment practice to fire a woman because she had an abortion, the Third Circuit held that abortion is protected under the PDA. The court further ruled that there was enough evidence to refute the employer's stated nondiscriminatory reason for termination and permit Doe's claim to proceed to trial.

Evidence the court considered significant included: (1) the daily call-in rule wasn't enforced for all employees, (2) another employee said the supervisor who fired Doe stated that Doe "didn't want to take responsibility," possibly in reference to her abortion, and (3) she was fired only three working days after the abortion. Doe v. C.A.R.S. Protection Plus, Inc., C.A. Nos. 06-3625, 06-4508 (3d Cir., May 20, 2008).

Bottom line

Abortion doesn't typically come up in the context of a discrimination claim because employees generally keep the procedure private. The facts in this case ― the baby was wanted, but the employee aborted it for medical reasons ― may be somewhat rare. Moreover, simple changes to the employer's policies and decisionmaking would have resulted in a dramatically different outcome. Nevertheless, the lessons here are applicable to many types of discrimination claims and serve to remind us of some basic good practices. Here's what we can learn from the case:

• Make your leave policies reasonable. If humanity isn't enough to persuade you on this point, then the risk of litigation should be. It's clear that the employer's draconian leave policy won no points with the court, nor would it with a jury. Plus, when leave policies are so unreasonable that no one can realistically abide by them, exceptions become routine. When exceptions are made, subjectivity comes into play, and it becomes very difficult to explain why exceptions were made in some cases and not others.
• Disseminate your policies, and enforce them consistently. Inconsistent treatment gets the employee past the first hurdle of any discrimination claim. It's not enough just to have a policy; you've got to make sure all your employees know about it, and your supervisors must enforce it.
• Carefully consider the timing of any serious employment action. If you're considering taking an adverse employment action directly following some protected activity (which now includes abortion in Delaware), think twice. Consider giving the employee a second chance and letting some time elapse before taking action. We hope that most of you wouldn't be so heartless to terminate an employee in the middle of personal tragedy. Think about how that move would sound to a jury! Even in circumstances less tragic than those in this case, suggestive timing is perhaps the most important piece of evidence in any retaliation claim. When the time gap is short (three days would qualify), a court is likely to conclude that there's a causal connection between the two events.

Copyright 2008 M. Lee Smith Publishers LLC

DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.