Seventh Circuit Issues Employee-Friendly Pregnancy Discrimination Act Decision

In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that “[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.” The Act further states that “[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.”

Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was allegedly discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall’s supervisors allegedly laid her off due to absenteeism associated with her infertility treatments.

If Ms. Hall had taken time off to give birth or prepare for her child’s birth, there would have been little question that her employer’s decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall’s infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall’s case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit’s decision will no doubt benefit thousands of employees nationwide.

Family Rights Discrimination Continues to be a Hot Button Issue

Family rights discrimination (FRD) — discrimination against an employee who serves as a caregiver to a family member — continues to be a hot button issue in the workplace. According to the Center for WorkLife Law (CWL), there were a total of just 8 FRD cases filed in the 1970s. The number significantly increased over the next several years, with a total of 97 FRD cases filed from 1986 to 1995. Unfortunately, FRD has shown little sign of abatement. From 1986 to 2005, FRD filings totaled 481; an increase of approximately 400%.

While smaller businesses present the highest incidence of FRD, large companies — even those recognized by Fortune as “Best Companies to Work For” — have been sued for such discrimination. According to the CWL, the success rate of FRD cases is relatively high, coming in at greater than 50% versus 20% for other types of discrimination cases. Notably, the average award for FRD cases is slightly over $100,000 with a high of $25 million.

Not surprisingly, women are plaintiffs in the overwhelming majority of FRD cases. It is not uncommon for such cases to arise in the context of pregnancy. A recent article featured in Forbes entitled How To Balance Work and Pregnancy, highlights two scenarios of which employees should be mindful:

Be Conscientious
If you do all this and notice your boss is restricting the types of projects you work on or has taken you off the partnership track, address it with him. In the best scenario, the boss is trying to make things easy on you (albeit unfairly). Document all of these changes and then say something to him. In most cases, it’s a misunderstanding that will be rectified by your bringing it to his attention.

Be Wary
If it’s a more serious situation, such as the boss making offhand comments about your pregnancy affecting your work, continue to document those instances. Also keep note of the change in assignments you’re getting. First, go to your boss and ask if there’s a problem with the quality of your work. If it doesn’t improve, bring all the examples to human resources. Discriminating against someone because they’re pregnant is illegal, and most companies will handle the situation immediately.

When in doubt, consult with an attorney who concentrates in employment law. You owe it to yourself, your family, and your career.

Massachusetts Maternity Leave Act Applies to Men

The Massachusetts Commission Against Discrimination (MCAD) recently announced that the Massachusetts Maternity Leave Act (MMLA), M.G.L. c. 149, s. 105D, must be viewed as gender neutral. Originally, the MMLA provided female employees with eight weeks of leave relating to the birth or adoption of a child. Recognizing the disparate treatment that the MMLA created, the MCAD Guidelines warned that “an employer who provides leave to female employees only, and not to male employees, may violate the federal prohibitions against sex discrimination even though the employer has acted in compliance with the MMLA” (See Answer 11).

MCAD Commissioner, Martin Ebel, defended the change as not only necessary to ensure equal treatment between male and female employees, but also to guarantee equality between same-sex couples:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

The MCAD’s long-awaited stance on the MMLA is a welcome change. Restricting the MMLA to female employees reflects the archaic perception that a woman’s career should take a backseat after giving birth. Granting equal maternity leave benefits to both men and women finally brings the statute into the 21st century.

For more information about the change to the Massachusetts Maternity Leave Act, please visit the Massachusetts Lawyers Weekly article entitled, Men now eligible for maternity benefits

Pregnancy Discrimination Complaints on the Rise According to the EEOC

Pregnancy discrimination may be on the rise. The Equal Employment Opportunity Commission (EEOC) has reported an up-tick in such complaints. Over the past year, complaints of pregnancy discrimination complaints rose 14% to 5,587. This represents the biggest annual increase in 13 years. Even more alarming, the number of pregnancy discrimination complaints has surged 40% from a decade ago. To read more about this trend, check out Sue Shellenbarger’s informative article in the Wall Street Journal entitled, More Women Pursue Claims of Pregnancy Discrimination.

Pregnancy discrimination, also known as family rights discrimination, has certainly picked up steam in the past two years. In December 2007, for instance, the New York Times published a sampling of newly minted buzzwords. Included in the list was “maternal profiling,” which the Times defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

(The article is entitled, All We Are Saying)

Surprisingly, the Massachusetts Fair Employment Practices statute (M.G.L. c. 151B, §4) does not explicitly prohibit discrimination based upon parenthood. In 2006, a Massachusetts Superior Court in Sivieri v. Commonwealth of Massachusetts interpreted the statute to include such a prohibition. Under Sivieri, pregnancy discrimination constitutes gender discrimination.

In Sivieri, the plaintiff worked as a paralegal for the state Department of Transitional Assistance (DTA). In November 1999, Sivieri gave birth to her daughter. After returning from maternity leave, Sivieri’s direct supervisor allegedly made numerous negative comments about her pregnancy. In one instance, her supervisor allegedly remarked that their work unit would maintain its productivity as long as no other employees became pregnant. Thereafter, Sivieri was passed up for a promotion for which she believed she was qualified.

In 2002, Sivieri filed suit on the basis that DTA’s failure to promote her constituted unlawful gender discrimination. Relying on the plain language of M.G.L. c. 151B, §4, DTA moved for summary judgment, arguing that the alleged discrimination related to parental status vs. gender, and parents are not members of a protected category under Chapter 151. The Superior Court rejected DTA’s position, holding that her supervisor’s negative remarks toward pregnancy and child rearing was based on gender stereotypes and, therefore, constituted gender discrimination.

The Sivieri decision is undoubtedly a step in the right direction. As the EEOC’s statistics indicate, however, there is still much progress to be made.

Gender Discrimination Claim Filed Against Boston Law Firm

One of Boston’s largest defense law firms finds itself in the same position as its clients: defending a lawsuit. In December 2007, Kamee Verdrager filed a gender discrimination and retaliation Charge of Discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Mintz Levin. Ironically, Ms. Verdrager is an associate in Mintz Levin’s employment law department where she defends claims brought against employers.

In her Charge, Ms. Verdrager details the repeated instances of gender bias that she allegedly experienced since the start of her employment in 2004. The Charge names Mintz Levin as a firm and also the following partners on an individual basis: David Barmak, Robert Gault, and Donald Schroeder.

Massachusetts Lawyer’s Weekly reported on this case in an article entitled, Mintz, Levin associate hits firm with MCAD bias complaint. According to the article, Mintz Levin is no stranger to gender discrimination allegations:

In 2005, the 4th U.S. Circuit Court of Appeals ruled that a jury had acted permissibly on the evidence in finding that Mintz, Levin’s Reston, Va., office had retaliated against a female employee, attorney Dawn M. Gallina — by deferring a pay increase and ultimately terminating her — because of her continued complaints of gender discrimination.

Given the factual issues at stake and the need for extensive discovery, we expect this case to be pulled out of the MCAD and wind up in Superior Court. To learn more about the MCAD process, please visit our post entitled, Massachusetts Commission Against Discrimination (MCAD) Issues Probable Cause Finding in Handicap Discrimination Case.

Pay Inequality Still Exists: Gender Discrimination Fuels Wage Gap

In 1964, Congress passed Title VII of the Civil Rights Act banning workplace discrimination based on, among other things, race and gender. Gender discrimination then, as evidenced through the wage gap, ran rampant. When Title VII was passed, women working full-time made approximately 59 cents to every dollar earned by their full-time working male counterparts. While progress has certainly been made, wage inequality between women and men persists. A recent article in the Wall Street Journal entitled, On Diversity, America Isn’t Putting Its Money Where Its Mouth Is
reveals the current wage gap:

Women, overall, are substantially lagging behind men in pay. Full-time female employees earned 77% of all men’s median wages. Breaking it down in terms of race, Asian-American women earned 78% of the median annual pay of white men; white women earned 73%; black women, 63%; and Hispanic women, 52%.

What can be done to put an end to the wage gap? Dr. Evelyn Murphy, President of The Wage Project, Inc., considered this very question in her book, Getting Even: Why Women Don’t Get Paid Like Men and What To Do About It.

As Dr. Murphy points out, seeking justice from the legal system is only part of the answer. Getting Even discusses the “pressure triangle,” which involves exerting pressure to end gender discrimination from the bottom up, from the top down, and from the outside in. The bottom up requires employees to document gender discrimination to their bosses and management. The top down requires those in control to respond to wage disparities and make a concerted effort to close the wage gap within their establishment. The outside in requires that we as a society make it socially unacceptable for employers to engage in discriminatory pay practices.

The wage gap will continue to exist if we continue to ignore it.

Sexual Harassment Decision Against Town of Grafton Handed Down by First Circuit

It seems like common sense: a boss who incessantly stares at an employee’s chest to the point that she must hold objects in front of her to deter his wandering eyes constitutes sexual harassment. The First Circuit in Billings v. Town of Grafton et al. agreed, holding that a secretary who alleges that a supervisor repeatedly stared at her chest could sue her employer for sexual harassment.

Nancy M. Billings began working as a secretary for Grafton Town Administrator, Russell J. Connor, Jr. in 1999. A few months into the job, Billings noticed that Connor would repeatedly stare at her chest during their conversations. In one particular instance, Connor stared at Billings’ chest so many times in the first half-hour of her workday that she felt compelled to drive home and change her sweater.

Not surprisingly, other women who worked for the Town of Grafton also reported Connor’s wandering eyes and objectionable conduct. Billings filed numerous complaints about her boss’ misconduct to no avail. Rather than take remedial action against Billings’ boss, the Town placed the blame on Billings, and ultimately transferred her to a different department under less desirable working conditions. In attempting to defuse Connor’s actions, the Town of Grafton claimed that an ailment, called “alternating intermittent exotropia,” caused Connor to essentially stare at Billings’ chest.

Writing on behalf of the First Circuit, Judge Jeffrey R. Howard opined that Billings states a legal claim for sexual harassment:

We cannot reasonably accept, however, that a man’s repeated staring at a woman’s breasts is to be ordinarily understood as anything other than sexual. In arguing to the contrary in this case, the defendants rely on Connor’s eye condition, coupled with the fact that others who worked with him “did not sense any sexual intent underlying” his “failure to maintain eye contact.” While this might have some bearing on whether Connor’s staring created an objectively hostile work environment, it does not mean that the staring cannot support such a claim as a matter of law, because “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

This case will be closely monitored as it progresses to trial.

Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008

Senator Edward Kennedy (D-Mass) has proposed two new, much-necessary bills. The first, called the Fair Pay Restoration Act, would essentially undo the harsh effects created by the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which held that the 180 day statute of limitations deadline for filing discrimination actions starts to run when a worker first begins to receive unequal pay, instead of when the employee actually becomes aware that his or her pay is discriminatory. We wrote about the Ledbetter decision on December 31, 2008 in a post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender. Senator Kennedy’s bill would make clear that the statute of limitations clock starts to run after the employee becomes aware of discrimination.

Senator Kennedy’s second bill, the Civil Rights Act of 2008, would undo more bad Supreme Court precedent as well. Among other things, the bill would reverse the 2001 Supreme Court decision in Alexander v. Sandoval, which held that individuals could not challenge federally-funded programs on the basis of discriminatory effect, but must rather meet the heavy burden of proving discriminatory intent.

The New York Times today featured an editorial on these two bills entitled, Restoring Civil Rights.

Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket

The Supreme Court’s docket in 2008 may include a case out of Nashville, TN involving sexual harassment. An article out of the Tennessean gives a synopsis of the facts:

The case began in 2002, when Vicky Crawford, then a payroll supervisor who had worked for the school system for 30 years, was contacted by school officials looking into allegations of sexual misconduct against Gene Hughes, then the schools’ employee relations director.Crawford told investigators that she had seen Hughes grab his crotch in her presence, that he had asked to see her breasts, and on one occasion, he grabbed her head and tried to force it into his groin. At the time, Hughes was responsible for investigating all claims of sexual harassment in the school district. The lawsuit alleges that the internal investigation ended with no disciplinary action against Hughes. But Crawford, and two other female employees who cooperated with the probe, were fired, the suit says.

Title VII prohibits employers from taking adverse employment actions against employees who oppose unlawful employment practices such as sexual harassment. At issue in Crawford’s retaliation claim under Title VII is the definition of oppose.

Crawford argued that she opposed Hughes’ inappropriate conduct by cooperating with the school’s internal investigation. In response, the school argued that Title VII’s whistleblower provision was not intended to protect employees participating in an internal investigation initiated by an employer. Disregarding Title VII’s broad remedial purpose, the district court and the Sixth Court agreed with the school’s argument and dismissed Crawford’s retaliation claim. Click here for the Sixth Circuit’s decision.

If the Supreme Court grants certiorari, the issue will focus on whether an employee who is terminated after cooperating with an internal investigation in which she alleges unlawful employment practices states a claim for retaliation under Title VII.