posted on Monday, June 23, 2008 8:37 AM
by
Lou Michels
Having an Abortion Creates a Protected Status
What could be a important case out of the Third Circuit Court of Appeals holds that an employer may not justify termination of an employee based on her decision to have an abortion. This is a first for the Third Circuit, although the EEOC has maintained since 1986 that the Pregnancy Discrimination Act covers all pregnancy-related medical conditions, which would include abortion.
The facts of the case are relatively straightforward. A female employee (unidentified in the case, presumably for privacy concerns) was fired five days after she terminated her pregnancy because of severe deformities detected in an ultrasound, and on advice of her physician. The district court granted summary judgment for the employer, but the Third Circuit reversed, sending the case back for trial.
The employee was terminated when she failed to call in to report her need for time off following the abortion. This was allegedly consistent with company policy, but the office administrator testified that there was a separate set of rules for each employee regarding leave and attendance, and that there were no uniformly enforced rules on vacation or sick time. Moreover, there were several examples of employees who did not have to call in to request additional time off from work. This administrative sloppiness undercut the employer's ability to argue that the actual reason it terminated the plaintiff was because she failed to call in.
The evidence that the Court of Appeals used to support its decision that the abortion could have been the reason for the employee's termination consisted of the short period of time between the abortion and the termination (in an incredibly bad bit of timing, the employer notified the employee of her termination on the day that she buried the aborted fetus), and a remark by the supervisor to the effect that the employee "did not want to take the responsibility." This remark was in an admittedly confusing conversation, but the court determined that it could raise an inference of discriminatory animus.
Other than a need to be aware that abortion is a protected factor, I'm not sure this case tells us a lot about managing gender discrimination or pregnancy discrimination claims. An employer who doesn't consistently treat its employees the same on matters of vacation and leave of absence is simply asking for trouble. It's really no surprise that the Court reversed on this case.