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Court: Termination over abortion is sex discrimination

Manager’s decision results in claim

Posted October 31, 2018

The federal district court in the Middle District of Florida, has ruled that an employee’s termination over her abortion was sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).

The employee, Elena, started work as a bank teller on November 1, 2016. The next day, she discovered that she was pregnant and informed her supervisor, Julie, that same day. Elena scheduled a medical procedure to terminate the pregnancy for November 10, 2016. She cleared the date with her supervisor prior to the procedure, and her time off was approved. Elena underwent the procedure in the morning and was unable to work for the rest of the day.

On November 16, 2016, Elena underwent a two-week performance evaluation, and did well. The company also noted that Elena had no disciplinary issues.

Thereafter, however, the branch manager spoke to Elena privately and notified her that she was being terminated because of her absence from work. The branch manager stated that the medical procedure was not an appropriate excuse for her absence, although it had been approved by Julie, her supervisor.

On December 5, 2016, Elena filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which enforces the workplace discrimination laws, including Title VII of the Civil Rights Act and the PDA.

In court, the employer acknowledged that Title VII protects women from discrimination based on their choice to have an abortion, but argued that the law does not require preferential treatment to pregnant employees; it only requires that employers treat “pregnant employees the same as non-pregnant employees who are similarly situated.” It claimed that Elena did not allege that she was treated differently than any other employee.

The employee, on the other hand, argued that the reason for her termination was pretext for sex discrimination because of her supervisor’s belief that the medical procedure was not a valid reason for pre-approved time off.

The court did not find the employer’s argument valid. It ruled that Elena’s allegations allowed it to sufficiently draw the inference that the company terminated her because of her choice to have an abortion, which may be a basis for sex discrimination. The court, therefore, did not dismiss the case, as the employer had requested.

Supervisor/manager training could be an employer’s best hedge against a discrimination claim. If the branch manager had been aware of the risks involved in the termination, she might not have decided to terminate Elena, and the employer would not have had to defend the action in court. Sex discrimination doesn’t always involve members of the opposite sex, as illustrated in this case.

Title VII makes it unlawful for an employer “to fail or refuse to hire or 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 race, color, religion, sex, or national origin.” As amended by the PDA in 1978, Title VII includes “pregnancy, childbirth, or related medical conditions” in its proscription on discrimination “because of sex.”

DeJesus v. Florida Central Credit Union, No. 8:17-cv-2502, October 11, 2018.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

Employment Law Essentials ManualJ. J. Keller's Essentials of Employment Law Manual covers more than 100 vital HR topics, including FMLA, ADA, HIPAA, FLSA, COBRA and more.


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