How to Get Sued for Pregnancy Discrimination

Posted on September 17, 2009 by Robert Ottinger

There is a great post out today by Patrick Smith of the Iowa Employment Law Blog entitled "How to Avoid Liability for Discrimination."  He explains how a medical practice out in Sioux Falls South Dakota called Siouxland Oral and Maxillofacial Surgery Associates got hit for pregnancy discrimination.   The manager of Siouxland Oral told one young woman that the clinic "never would have hired [you] if they had known [you were] pregnant."   Another job applicant was told that the clinic would not hire her on account of her pregnancy because "you are just going to end up causing more work for everybody else than you will be helping them."   Read Patrick's post for the full story.   Siouxland Oral needs an HR person.   

 

Tags:

California Company Found Liable for Pregnancy Discrimination

Posted on August 14, 2009 by Robert Ottinger

A California woman successfully sued her employer for pregnancy discrimination and won $85,000 in emotional distress, repayment of all lost wages and her employer was fined an additional $25,000.  The decision was issued by the California Court of Appeal on July 15, 2009.  The successful plaintiff, Zibute Scherl, was a Second Captain on a yacht.  After she became pregnant, her boss expressed disappointment that she was pregnant, had concerns about "mothers working in the boating business," and worried about potential liablity.   He fired Ms. Scherl soon after she announced her pregnancy. 

The Company argued that Ms. Scherl's pregnancy was not a factor in her termination.  Instead the Company claimed that she was simply part of a company wide reduction in force.  But the Court did not believe this argument because when the company was in need of new employees, it did not ask Ms. Scherl to return and instead hired other less experienced people.   

This is a great result for pregnant employees.   At our firm, we find that a lot of pregnant woman are caught up in reductions in force.  The companies always argue that pregnancy was not a factor and often are unwilling to settle.   But this case shows that a close look at the facts can get past the "reduction in force" defense.  Click here to see a short video of a typical pregnancy discrimination case. 

Tags:

Working Mom Wins Discrimination Battle

Posted on April 4, 2009 by Robert Ottinger

Some companies do not treat working moms equally. Some think that working moms have “too much on their plate” and don’t give moms the same opportunities at work. Take Laurie Chadwick, a mother of four young children, for example.  She had a strong record of success at Wellpoint Inc., even though she had young kids. She scored a 4.40 out 5 in her latest review. But when she applied for a promotion, Wellpoint rejected her and instead promoted a less qualified woman without children.  Ms. Chadwick sued for sex discrimination.

The federal trial judge threw her case out of court, but the relentless Ms. Chadwick appealed. She found a sympathetic audience with the Court of Appeals and they reversed that pesky trial judge and reinstated her case. Here is what the Court of Appeals said:

Unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. ... [A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities. (Read the full court opinion here.)

In Ms. Chadwick’s case, the company made a few telling comments. For example, when she asked why she did not get the promotion, she was told, "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you just have a lot on your plate right now." And during the interview, one of the interviewers said, "Oh my -- I did not know you had triplets. Bless you!"  This decision in favor of Ms. Chadwick is a great victory and it can be used by other working moms who suffer discrimination.

Check out the The Employee Rights Post for more commentary on this case. 

Tags: , , , ,

Pregnancy and Reductions in Force: Perfect together

Posted on April 3, 2009 by Robert Ottinger

Yesterday I read Ellen Simon’s post called “Getting Fired Because of Pregnancy is Illegal.”  She was commenting on the New York Times article, “When the Stork Carries a Pink Slip,” by Lesley Alderman. In these days of mass lay offs, pregnant woman and mothers are getting hit hard.  This is obvious to me because our employment law firm in New York City gets daily calls from pregnant woman holding pink slips.  In fact, when I arrived at the office this morning, a pregnant woman, Mary (not her real name) was waiting to see me. 

Mary was upset because she had been let go by her employer, a large retailer in New York City.  Mary’s employer had selected 30 employees for termination (Reduction in Force or RIF) and she was selected for the RIF.   Mary wanted to know if it was legal for a company to fire a pregnant person.  The answer, as Ellen Simon explains, is simple.   It is only illegal if the company fired Mary BECAUSE she was pregnant.   It is legal to fire a pregnant employee for other reasons.   For example, if Mary was fired because of poor performance or because she was no longer needed, her termination would be legal even though she is pregnant. 

In Mary’s case, her employer had selected 30 employees to be terminated, including her.  But the company also created many new positions due to the restructuring of the company and the 30 employees were told to apply for the new positions.  More than half of those terminated were hired back.   But no one would hire Mary with her protruding pregnant belly, even though Mary was more qualified and experienced than most.  As Mary’s boss candidly told her, “look, no one is going to hire you while you are pregnant, so just give up and enjoy your time off.”  A statement like that indicates that Mary’s pregnancy was a factor in the company’s decision not to re-hire her.  So Mary may have  a case and therefore she should get a much larger severance package.  

Tags: ,