Employee Must Prove
Employer Knew of
Pregnancy to Prevail on Discrimination Claim
Recently,
a California
appeals court reiterated the long-standing rule that a discharged employee
must prove that the employer knew she was pregnant at the time she was
terminated in order to prevail on a pregnancy discrimination claim. Trop
v. Sony Pictures Entertainment, Inc., Cal. App., 2nd Dist., (May 3, 2005) No.
B174101.
Employee Didn't Want Supervisor to Know About Her Pregnancy
Anne
Trop was employed by a division of Sony Pictures as an assistant to a movie
producer and director, Betty Thomas.
At
one point during her employment, Trop spoke with another producer about her
efforts to get pregnant. No one else was present during the conversation
and the producer did not share the information with anyone. Trop also told
other co-workers about her desire to get pregnant. She asked the co-workers
not to discuss her desire with Thomas, and the co-workers honored her
request.
Trop eventually became pregnant. Again, she told co-workers about
the pregnancy but asked them not to tell Thomas.
Supervisor Learned of Pregnancy After the
Termination
Thomas
terminated Trop alleging poor performance. After Thomas told Trop she was
being let go, Trop began to cry and told Thomas she was pregnant. Thomas
made a number of negative comments about the pregnancy, asking Trop how she
was going to be able to handle it. However, according to Thomas, prior to
that meeting, no one had ever told her Trop was pregnant or trying to
become pregnant.
Trop
sued her employer for sexual discrimination based on pregnancy. The
defendants brought a motion for summary judgment on the ground that Trop's
supervisor, Thomas, did not even know Trop was pregnant.
No Evidence Employer Knew of Pregnancy When It Made Termination
Decision
The
court ruled that an employee cannot make out a prima facie case of
discrimination based on pregnancy under the Fair Employment and Housing Act
(FEHA) in the absence of evidence the employer knew the employee was
pregnant.
When
the pregnancy is not apparent and it has not been disclosed to the
employer, the employee must present evidence from which it can reasonably
be inferred that the employer knew of the pregnancy.
Trop
was unable to show that Thomas knew about the pregnancy. Trop's pregnancy
was not yet apparent, and she had not disclosed it to Thomas. While she had
told other co-workers, the evidence presented showed that they had not
disclosed her confidence.
In
addition, there was no direct evidence of discrimination. Thomas had made a
few generally negative comments about pregnancy, but they did not show that
Trop was terminated because of her pregnancy. Again, Thomas did not know of
the pregnancy until after the termination, and she also provided Trop with
three reasons why she was terminating her.
Pregnancy Discrimination Claims on the Rise
Pregnancy discrimination claims have been on the rise in recent
years, increasing 40 percent over the past decade, according to the Equal
Employment Opportunity Commission.
Both
federal (Title VII) and state (FEHA) laws prohibit pregnancy
discrimination, which is a form of sex discrimination. The prohibition
applies to employers of all sizes.
Generally,
pregnant employees must be treated the same as other employees with similar
abilities or limitations. The law prohibits refusing to hire, transfer or
promote an employee because of pregnancy, as well as prohibiting
termination, demotion or other adverse employment action taken because of
pregnancy.
The
employer must treat the employee in the same manner as it treats other
employees affected by a temporary disability. Thus, health benefits and
fringe benefits (such as vacation, seniority, pay increases) must be
provided for pregnant employees in the same manner as they would be
provided to employees who are temporarily disabled. Under state law,
employers are also prohibited from refusing to grant pregnancy disability
leave to an employee disabled by pregnancy.
Tips for Employers
- Employee handbooks
should state that pregnancy discrimination is prohibited.
- Supervisors and
managers should be trained that pregnancy discrimination is unlawful.
- Focus on equal
(not preferential, but not discriminatory) treatment of the pregnant
employee. Treat the same as any other employee with a temporary
disability.
- Avoid overly
personal inquiries of the pregnant employee. Also, avoid sharing too
much information about your own or your spouse's pregnancy.
- Strictly refrain
from any comments or questions about the employee's ability to balance
working and pregnancy or working and childrearing.
- Provide the
employee with clear information about leave rights.
- Review any adverse
employment action taken against a pregnant employee to ensure that
there is no hidden discrimination.
- Thoroughly
document any performance problems that may occur with pregnant
employees in the event a termination or other disciplinary action is
warranted. Have a checks and balances system in place. Ask at least
one other senior manager to review the disciplinary action and the
documentation before acting.
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