Category Archives: Pregnancy Discrimination

Statement that Employer “Didn’t Want to Get Screwed Over” if Employee Gave Birth Proves Pregnancy Discrimination

In EEOC v. Bob Evans Farms, (W. D. Pa. no. 15-cv-1237)(August 17, 2017, J. Hornak), the employee was a server employed at a Bob Evans restaurant for five years. The employee intended to work up until she gave birth to her second child. After the employee became pregnant she was removed from the automatic shift scheduling process utilized by the restaurant to create employee schedules based on availability and anticipated needs. The General Manager and the employee had a conversation about her future work schedule and the employee indicated that she would work until she had the baby. The General Manager asked her if she could change her availability in the system because he didn’t “want to get screwed over if [she had] the baby.” Approximately two weeks after the conversation the General Manager changed the employee’s availability to “zero”; because she was pregnant, he believed her need for leave was imminent, and he wanted to ensure that the restaurant’s staffing needs were met. The court held that the record demonstrated that several weeks before the employee went into childbirth and without any request by her, the General Manager changed her availability from a status that would automatically generate a schedule with her assigned work, to a status that would not automatically schedule her for any work and result in her only being granted shifts that were available after the automatic system already had generated a schedule without the employee being assigned to any work; as a consequence the employee’s level of work materially declined.

Title VII prohibits discrimination in employment “because of sex.” The Pregnancy Discrimination Act (“PDA”) amended Title VII to add Section 2000e(k) which provides, “The terms, “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions. The Supreme Court has made it clear that the PDA was established so that women who are capable of doing their jobs are treated the same as their male counterparts and not be forced to choose between having a child and having a job. The prohibition against pregnancy discrimination is breached whenever an employee’s pregnancy or related medical condition is a motivating factor for the employer’s adverse employment decision.

Direct evidence is evidence that would prove the prohibited intent without resort to an inference or presumption. In Bob Evans, the court held that the record evidence shows directly and without equivocation that the reason for General Manager’s decision to remove the employee from automatic scheduling was because she was pregnant and he believed her need for leave because of child-birth (and nothing else) was imminent. The court held that the PDA compels the conclusion that an employer cannot require a pregnant employee to stop working unless she is unable to work, preserving the decision to work to the woman’s judgment in the first instance. An employer cannot act to take away a pregnant employee’s shifts because she will go into labor at some point. Nor can it place a roadblock in her path by taking her off of the automatic schedule (and thereby reducing her work opportunities) and effectuate the same result. Thus, the court found discrimination based on pregnancy as the employee (1) was removed from the automatic scheduling system; (2) was expected to call-in as able to work before she would be permitted to work; and (3) was to be placed onto the schedule only if needed to fill a hole after the automatic schedule was generated for other employees. The court concluded that this demonstrated that the General Manager made assumptions about her pregnancy and future childbirth which are prohibited by the PDA. The court also held that it was undisputed that the employee suffered significant disruption in her terms and conditions of employment as she was effectively changed from a regularly scheduled part-time shift worker to a fill-in part-time shift worker with the uncertainty of such a schedule placed on the pregnant worker because she is pregnant and she would at some point give birth, both of which are prohibited considerations. Accordingly, the court that while it is the rare lawsuit in which the record entitles a plaintiff to the grant of summary judgment in its favor, the managers motivation was so clear that a finding in favor of the employee was warranted.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who are discriminated against based on sex and pregnancy in Philadelphia and all its surrounding suburbs. For more information on pregnancy discrimination see https://www.job-discrimination.com/pregnancy-discrimination.html

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Unemployment: Employee is entitled to Unemployment Benefits When Employer Changes Job Duties and Work Hours after Pregnancy Leave

Employees, who are pregnant, take a leave of absence from work and then attempt to return to the same job frequently run into problems with their employers. These situations frequently present pregnancy discrimination claims and in some instances also create issues with unemployment benefits. If an employer demotes the employee upon return from leave, the employee may have a necessitous and compelling cause for leaving work and be entitled to unemployment benefits.

In a recent case, Clover Hill Enterprises v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 147 (February 20, 2013), the employee worked for the employer as a full-time office manager, went on an employer-approved maternity leave and before beginning maternity leave told the employer that she intended to return to her job 6-8 weeks after the birth of her baby. At the time the employer requested assurances the employee would return to her job duties and perform them as she did previously. To be entitled to unemployment benefits, an employee who voluntarily terminates her employment bears the burden of proving that she had a necessitous and compelling cause, which in the case of a voluntary termination after a demotion focuses solely on the justification for the demotion. In Clover Hill, after the birth of her child the employee reiterated her desire to return to the same job she had before her maternity leave but the employer only offered probationary part-time employment. The court found that the employee had a necessitous and compelling cause to leave her employment due to the unreasonableness of the employer’s substantial unilateral changes to her job duties following the birth of her child.

An employee who takes a leave for the birth of a child and runs into any issues in returning to employment should consult with an experienced employment law attorney. For more information on pregnancy discrimination, Pennsylvania unemployment compensation and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1491925.html

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Pregnancy Discrimination – Terminating Employment Shortly After Notification of Pregnancy and Request for Pregnancy Leave Supports Pregnancy Discrimination Finding

The likelihood of prevailing in any employment case substantially increases when a Plaintiff is able to show temporal proximity (i.e. termination occurs shortly after Plaintiff engages in conduct protected by the law).  An inherent feature of a pregnancy discrimination claim is that temporal proximity is almost always apparent. This concept recently played out in Turevsky v. Fixtureone Corp., 2012 U.S. Dist. LEXIS 151221 (E. D. Pa. no. 10-cv-2911) (October 18, 2012) (Joyner, J.), where the Plaintiff notified the employer she was pregnant in June 2007. Thereafter, on November 11, 2007, Plaintiff informed the employer she would begin a leave in early December 2007 and the Defendant laid Plaintiff off on November 16, 2007. In Turevsky, the Court denied a Motion for Summary Judgment finding it was undisputed that the Defendants knew of her pregnancy, Plaintiff was qualified for the job in question, and her termination constitutes an adverse employment decision. The Court relied upon the temporal proximity between Plaintiff informing the Defendants of her anticipated maternity leave and her termination and found that temporal proximity raises an inference of discrimination.

 For more information on Pregnancy discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126517.html

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