Tag 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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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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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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