Sixth Circuit Rejects Lactation Retaliation and Hostile Work Environment Claims

 Last week, the Sixth Circuit affirmed a school employer’s summary judgment on a retaliation and harassment claim brought by a non-renewed special education teacher who had alleged that she was terminated in retaliation for taking lactation breaks.  Childers v. Casey County School District Board of Education, No. 23-5317 (6^th Cir. Aug. 1, 2024).   Although she brought the claims under Title IX and Kentucky state law, the Court applied Title VII burdens of proof to find that the employer’s explanation -- her failure to timely submit forms to fund a student’s education -- was not pretextual in light of the sporadic and stale allegations in her complaint. 

According to the Court’s opinion, the plaintiff was a contract special education teacher.  A new student was added during her maternity leave, but she failed to complete his enrollment verification form after she returned even though she was aware that his forms had not been properly completed or submitted for federal funding.  She and the Principal had agreed that she could use her locked classroom for lactation breaks and put a cover on the door.   When she returned from leave, the Special Education Director objected to the amount of paid time she intended to spend each day without seeing students: 60 minutes for planning, 60 minutes for lactation and 20 minutes for lunch.  She did not adjust her schedule.   Over the next six months, someone inadvertently entered her room during her lactation breaks on three separate occasions.  The Principal also asked her one time to remove the cover from her door for a safety audit, but she refused to do so.   For her performance evaluation, she was free to add examples of her students’ work, but she failed to do so.  She was evaluated as “developing” in part because the school lost funding for the new student for whom she had failed to timely submit a required form.  She appealed the evaluation, but it was affirmed and her contract was not renewed.

The Court found that the teacher failed to show that her poor performance evaluation was pretext for discrimination or retaliation.  While she agreed that the new student’s form was ultimately her responsibility and she had sufficient time to complete it, she attempted to shift the blame to others.   She also failed to show that the Special Education Director or his outburst six months earlier about her work schedule played any role the decision to not renew her contract.    Finally, she could not show pretext when she herself chose what was placed in her folder, not the Principal.

The Court also found insufficient evidence of a hostile work environment based on five sporadic incidents over a six month period.

While we are sympathetic to [the plaintiff’s] privacy concerns, these episodes are insufficient to raise an actionable hostile work environment claim. [She] acknowledged that she did not think that the janitors entered her classroom purposefully, which diminishes the severity of the intrusions. . . . The infrequency of the privacy violations, including the alleged removal of her window cover, demonstrates that [her] allegations are the types of “isolated incidents” that are legally insufficient to state a hostile work environment claim. . . . And [the Director’s] challenges to and frustrations with her draft schedule were not frequent, severe, physically threatening, or humiliating; at most, they constituted “mere offensive utterance[s].”

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. 

Ohio Court Upholds Termination of Disloyal Employee Against Public Policy and Pregnancy Discrimination Claims

Last month, the Highland County Court of Appeals affirmed the  Rule 12(B)(6) dismissal of a complaint filed against a bank for pregnancy discrimination and wrongful discharge in violation of public policy.  Storer v. Natl. Coop. Bank, 2024-Ohio-1676.  The Court concluded that there is no public policy in Ohio prohibiting an employer from discharging an employee who shared internal, private emails with her boyfriend’s attorney concerning a legal dispute with her employer.  While public policy may protect consulting with an attorney about the employee’s own legal problems, that policy does not extend to protect the employee from consulting with a third-party’s attorney about his problems.  Further, the Complaint failed to allege sufficient facts to show that her termination was related in any way to her pregnancy.  Simply making “speculative” and “conclusory” allegations that she was fired while pregnant cannot survive a motion to dismiss.

According to the Court’s opinion, the plaintiff had been a loan processor for seven years, had already been pregnant twice and always had good performance evaluations.   In 2021, her boyfriend had a dispute with the bank over procuring mortgage loan insurance.  She sent an email to the bank’s insurance analyst and later to the CEO and, apparently, shared them with her boyfriend’s attorney, who then produced them during litigation discovery.  In the meantime, she told her supervisor that she was pregnant with her third child.  There were no allegations that she or her supervisor told anyone else at the bank that she was pregnant.   Two months later, she was terminated for her “unethical” sharing of the internal emails with her boyfriend’s attorney.  There are no allegations that her supervisor participated in the termination decision.  She and her boyfriend then filed suit.  The bank moved to dismiss the complaint and its motion was granted.

As the trial court noted:

There is no case law to support a finding that the clear public policy of this state is to allow an employee to voluntarily provide information or assistance to the attorney of another person involved in a dispute with their employer. That could lead to significant adverse impact on businesses if employees were allowed to assist attorneys asserting claims against their employer. The Court finds that this is not a clear public policy of the State of Ohio and has no basis in the Ohio Constitution. Therefore, the Court finds that Count One [wrongful termination] of the Plaintiffs’ complaint fails to state a claim under Ohio law upon which relief can be granted.

The Court of Appeals rejected the plaintiff’s argument that the public policy should be extended to her because she was “associated” with her boyfriend.   It found that she failed to allege such a theory in her complaint or to oppose the motion to dismiss at the trial court.  Further, the bank pointed out that the public policy exception for consulting with an attorney only clearly extends to disputes regarding employment rights and not to independent business interests of the employee which also implicate the employer’s rights or to lawsuits filed against the employer by the employee.

We find no legal authority to support an expansive public policy exception that would prohibit an employer from terminating an employee who assists a third party’s attorney on legal matters affecting the employer’s business.  . . . .  The concern identified by the trial court supports our decision not to extend Chapman: “That could lead to a significant adverse impact on businesses if employees were allowed to assist attorneys asserting claims against their employers.” And, analogous to the rationale in Taylor, forcing an employer to work with an employee who is assisting a third party’s attorney in a dispute against the employer would “place the employer in the unenviable position of having to continue in a relationship that has been tainted” by the dubious nature of an untrustworthy employee. Further, [the plaintiff] did not allege that she consulted an attorney to advise her of any rights she had as an employee.  . . .

The Court rejected the plaintiff’s arguments that she had sufficiently alleged that she was terminated because she was pregnant.  Her complaint alleged little more than that she was fired two months after informing only her immediate supervisor that she was pregnant.  There were no allegations that the supervisor participated in the termination decision or that she or anyone else had informed the decisionmakers that she was pregnant.

The Court observed that “although each element of a cause of action does not have to be alleged with exacting specificity, the complaint must still allege “sufficient underlying facts that relate to and support the alleged claim and may not simply state legal conclusions.”  In this case, the plaintiff’s complaint alleged each element of a pregnancy discrimination claim in conclusory fashion without any underlying or supporting factual allegations.  Importantly, she “alleges no set facts to support her legal conclusion that the bank’s decision to terminate her “was motived by the fact she was pregnant.” It implicitly refused to impute her supervisor’s knowledge to the executive decisionmakers.

The Court also rejected her argument that the temporal proximity of two months between her announcement to her supervisor and her eventual termination by bank executives was sufficient to support a causal connection between the termination and her pregnancy without other compelling evidence.

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers ‘labels and conclusion’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ ”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Sixth Circuit Permits Rescission of Severance Agreement Release When Severance Pay Was Tendered Back A Few Weeks After Sex Discrimination Lawsuit Was Filed

Yesterday, a divided Sixth Circuit reversed an employer’s summary judgment on pregnancy and sex discrimination claims despite the fact that the plaintiff had signed a severance agreement and release in exchange for severance pay which she did not return until more than a year later -- after the EEOC investigation and a few weeks after she filed a lawsuit against her former employer.  McClellan v. Midwest Machining, Inc., No. 17-1992 (6^th Cir. 8-16-18).   The trial court found that the plaintiff’s release of claims had not been knowing and voluntary because she had been pressured to sign the release in the same meeting where she was terminated.  Although the trial court concluded that she had been required to tender back the severance pay before filing suit, the Sixth Circuit disagreed.  It found that, by returning the severance pay and revoking the agreement within weeks of when her attorney was informed of the agreement’s existence, she had satisfied the tender-back rule, if it even applied to bar federal discrimination claims.  Rather, the amount of severance could be deducted from any monetary award that she received during the litigation.

According to the Court’s opinion, the plaintiff had worked in inside sales for the defendant employer for eight years with no disciplinary actions.  In August, she announced that she was pregnant and her supervisor appeared annoyed when she missed work for pre-natal appointments.  In November, she was called into the president’s office, informed that she was being terminated and that she would only get severance pay if she signed the severance agreement and release that day.  Although the president reviewed the terms with her, he did so quickly and shot down her questions about the amount of her accrued vacation pay.  The Release apparently did not explicitly mention that it covered claims of discrimination because she testified that she thought that that it only applied to wage claims. 

She later filed an EEOC Charge and retained an attorney, who filed a complaint asserting claims for pregnancy discrimination, pay discrimination and a sex-segregated workplace.  When the employer notified her attorney about the severance agreement, the plaintiff sent a letter to the employer rescinding the agreement and enclosing a check in the full amount of the severance pay that she had received.   The employer returned her check on the grounds that there was no legal basis for rescinding the agreement. 

The trial court denied the employer’s motion for summary judgment on the grounds that there were disputed questions of fact as to whether the plaintiff’s signature on the severance agreement release had been knowing and voluntary in light of the economic and other pressure she felt to sign the agreement during the termination meeting and the lack of clarity about the release encompassing discrimination claims.    However, the trial court granted the employer’s summary judgment motion on the grounds that even if the severance agreement had been voidable on grounds of involuntariness or duress, the common law tender back doctrine required her to return the consideration that she received prior to filing her lawsuit, not after, or she would be found to have ratified the severance agreement by retaining the consideration.

The Sixth Circuit reversed.  In its only prior reported decision applying the tender-back doctrine to a federal employment discrimination release, the court held that the tender back doctrine did not apply to a release of age discrimination claims under ADEA.  Raczak v. Ameritech Corp., 103 F.3d 1257 (6th Cir. 1997) (relying on Supreme Court decision in Hogue under the FELA).  The Supreme Court later refused to enforce a defective ADEA waiver (which did not comply with the OWBPA) even though the plaintiff had similarly failed to tender back the consideration that he had received prior to filing his ADEA lawsuit.  Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).   The only other Circuit to address the issue to a Title VII claim had likewise found that the tender-back doctrine would not bar a lawsuit.  The Sixth Circuit found the same policy considerations applied to prevent applying the tender-back rule to federal sex discrimination claims.

In sum, we conclude that the language and reasoning of Oubre and Hogue apply equally to claims brought under Title VII and the EPA.  In Oubre, the Supreme Court was worried about “tempt[ing] employers to risk noncompliance . . . knowing it will be difficult to repay the moneys and rely[] on ratification.”  522 U.S. at 427.  Similarly, we worry that requiring recently discharged employees to return their severance before they can bring claims under Title VII and the EPA would serve only to protect malfeasant employers at the expense of employees’ statutory protections at the very time that those employees are most economically vulnerable.  We therefore hold that the tender-back doctrine does not apply to claims brought under Title VII and the EPA.  Rather, as the Supreme Court said in Hogue, “it is more consistent with the objectives of the Act to hold . . . that . . . the sum paid shall be deducted from any award determined to be due to the injured employee.”  390 U.S. at 518.

In any event, the Court found that the plaintiff’s return of the $4,000 severance pay more than a year after she had been fired and only a few weeks after she filed her lawsuit was sufficient to rescind the severance agreement.  “[F]ederal law does not require that the tender back be before, or contemporaneous with, the filing of the original complaint.” 

The Oubre majority, however, held that the party “elect[ing] avoidance” may tender back any benefits received under the severance agreement not only before filing suit, but at any point “within a reasonable time after learning of her rights.”  522 U.S. at 425 (emphasis added).  This comports with the Restatement of Contracts, which provides that “[t]he power of a party to avoid a contract for . . . duress . . . is lost if, after the circumstances that made it voidable have ceased to exist, he does not within a reasonable time manifest to the other party his intention to avoid it.”  Restatement (Second) of Contracts § 381(1) (1981) (emphasis added).

Accordingly, even if Plaintiff were required to tender back the consideration, she was required to do so not before filing suit but within a “reasonable time” after she discovered that the severance agreement revoked her right to bring a discrimination claim.  And given the district court’s factual finding that Plaintiff “did not understand she had given up her right to sue for discrimination” until engaging counsel to represent her in this matter, (R. 33, Second S. J. Order, PageID # 231), and that her counsel drafted a complaint immediately after speaking with her, it stands to reason that Plaintiff’s offer to tender back the consideration fell “within a reasonable time after learning of her rights,” Oubre, 522 U.S. at 425.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.  

Pregnancy Discrimination: Abstract New EEOC Guidelines vs. Real World

At the end of last month, the EEOC updated the pregnancy discrimination guidelines it issued last summer in the wake of March’s Supreme Court’s decision in Young v. UPS.   Ignoring the Court’s significant criticisms of last year’s guidelines, the EEOC notes in its press release that it made only a few changes to reflect the Court’s new pregnancy discrimination standard.  It has completely replaced the former guidelines on its website with the new guidelines, so it’s virtually impossible to evaluate the breadth and significance of the changes.   Coincidentally, about a week later, the Sixth Circuit dismissed the FMLA and pregnancy discrimination claims of an employee who was fired during her pregnancy because she could not perform the essential functions of her job and refused to return FMLA forms.   Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

Last summer’s EEOC’s pregnancy discrimination guidelines provided that employers should provide light duty and time off to pregnant employees under the same conditions as other non-pregnant employees.   In particular, the EEOC’s standard was that pregnant employees “be treated the same for all employment-related purposes as other persons no so affected by similar in their ability or inability to work.”  As examples, the EEOC posited that pregnant employees must be provided with light duty if light duty is provided to employees with work related injuries and must provide the same reasonable accommodation provided to an employee with a disability if it also would not create an undue hardship. 

In March, however, the Supreme Court strongly criticized the EEOC’s new positions on pregnancy discrimination and refused to give them any significant weight in its decisionmaking. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with the EEOC’s

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

 

The new guidelines strike significant portions of its prior discussions and examples about finding pregnancy discrimination when a pregnant employee is treated differently than another employee with similar abilities to work (particularly with respect to light duty requests) and, instead, attempt to explain the Supreme Court’s similarly new position on pregnancy discrimination.   “Employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.” 

A plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green in order to establish an intentional violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty. Absent such evidence, however, a plaintiff must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination.

According to the Supreme Court's decision in Young v. United Parcel Serv., Inc., a PDA plaintiff may make out a prima facie case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" As the Court noted, "[t]he burden of making this showing is not 'onerous.'" For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways." For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought.

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates."

Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual. Young explains that

[t]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination.

An employer's policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees. For example, in Young the Court noted that a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact.

That being said, the Sixth Circuit soon thereafter affirmed the summary judgment dismissal of pregnancy discrimination and FMLA claims brought by a pregnant plaintiff who was fired during her pregnancy when she could not perform all of the essential functions of her position and refused to return the FMLA forms (after having already provided other letters from her physician explaining her work restrictions).  Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

According to the Court’s opinion, the plaintiff worked as a shift leader and sometimes worked in the store alone.  About four months into her pregnancy, she presented a doctor’s note explaining that she could not work more than 8 hours and needed a 15 minute break every four hours.  Her request was granted.  After experiencing some hip pain a month later, her doctor sent a note that she should not engage in activities which could cause her to fall or drop something on herself. When the employer asked the plaintiff which job duties were concerning to her, she identified: taking out the trash, standing for long periods of time, squatting, bending, leaning over, climbing ladders and lifting heavy objects.   Seeking more expert opinion on the plaintiff’s abilities, the employer requested her physician to evaluate her abilities to perform her job duties.  The physician indicated that she should perform light medium work, not lift over 20 pounds, not climb, and not frequently lift over 10 pounds, but that she could bend, squat, kneel, stand and walk for short periods.  He also advised her to avoid certain job duties for the remainder of her pregnancy, including cleaning the coolers, making tea, emptying trash, stocking outside, cleaning baseboards, walls, windows and restrooms, etc.  The plaintiff admitted that this mean that certain job duties would not be performed whenever she worked alone.

The employer indicated that it could not accommodate these medical restrictions, that the plaintiff could not return to work until the restrictions were lifted and that she should take FMLA leave or, if ineligible, personal leave.  Despite her having already provided a detailed medical opinion, the employer then sent her an FMLA forms to complete, which the plaintiff refused to do since she wanted to remain at work.  The employer explained that it might provide her with personal leave after she exhausted FMLA leave, but it would not guarantee returning her to her shift leader position after the FMLA period lapsed.  She was also informed that if she refused to complete the FMLA paperwork, she would be fired for job abandonment.  While the plaintiff took vacation days, her FMLA deadline passed and the employer denied her FMLA leave.  However, it offered her personal leave if she returned the paperwork within two weeks.  Again, the plaintiff refused.  Accordingly, her employment was terminated several weeks later and the litigation ensued.

The Court dismissed her involuntary/interference FMLA leave claim on the basis it was not ripe.  In the Sixth Circuit, a plaintiff cannot sue for being involuntarily placed on FMLA leave (when the plaintiff wants to remain at work) until after the plaintiff seeks FMLA leave and is denied on the grounds that it had been exhausted because of the involuntary FMLA leave.

While being forced to take unpaid leave has an effect similar to being suspended without pay, the statute does not grant employees the right to be free from suspension. Several of our sister circuits have therefore held that involuntary FMLA leave does not directly injure an employee’s FMLA rights. . . .

We nonetheless recognize that involuntary FMLA leave has the potential to indirectly interfere with an employee’s FMLA rights. An employer who forces an employee who does not have a job-restricting serious health condition—i.e., an employee who remains capable of performing all essential job duties—to take FMLA leave may improperly exhaust the twelve weeks of leave to which the employee is statutorily entitled each year. . . . But the injury to the employee’s FMLA rights would remain inchoate unless she develops a serious health condition within a year and requests FMLA leave. If the employer were to grant the employee the full twelve weeks of leave to which she is entitled—i.e., not counting the previous involuntary FMLA leave against her annual limit—the employee would not suffer a cognizable injury under the FMLA. Therefore, an involuntary-leave interference claim “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.”

The Court refused to recognize her opposition to involuntary leave as an FMLA retaliation claim either:

Because involuntary leave cannot by itself violate the FMLA, opposing involuntary leave is not protected conduct under the statute. Therefore, termination for refusing involuntary leave is not retaliation.

The Court rejected the plaintiff’s argument that the employer’s citation to her pregnancy as a reason to place her on involuntary medical leave constituted direct evidence of discrimination.   In light of her own physician’s instructions, this was not a stereotyping case.  Bizarrely, the plaintiff attacks the employer’s policy (which mostly quotes the FMLA regulations) that medical conditions related to pregnancy may constitute a serious health condition under the FMLA.  The Court correctly found the policy does not distinguish between providing leave for pregnancy and other serious health conditions.  In any event, the Court decided that the employer was too straightforward to be trying to hide discrimination:

Even if Speedway had misidentified the reason for Huffman’s FMLA leave, the paperwork would not be direct evidence because we are not required to conclude that Speedway acted with discriminatory motive. The existence of an ulterior motive that Speedway was trying to cover up with an “invented reason” must be inferred. A second inference is required to conclude that the ulterior motive was pregnancy discrimination.

 

Ultimately, the plaintiff’s discrimination claim failed because she failed to submit any admissible evidence that non-pregnant employees were treated more favorably.  All she had was her own hearsay testimony based on what she heard from co-workers who believed that other employees had been placed on light duty when faced with similar medical restrictions.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Creates New Legal Standard For Pregnancy Discrimination Claims

This morning, a divided Supreme Court reversed the employer’s summary judgment in a disparate treatment pregnancy discrimination case, but rejected the legal and statutory interpretation arguments submitted by the government, EEOC, employer and plaintiff.  Instead, the Court created a new standard which applies only to pregnancy discrimination claims.  Young v. UPS, No. 12-1226 (3-25-15).  The issue confronting the Court was how an employer must treat a pregnant employee who requires an accommodation offered to some, but not all, other non-pregnant employees with similar physical restrictions.  The Court rejected most-favored-nations status for pregnant employees based simply on the grounds that accommodations have been offered to only some employees. It also rejected the employer’s argument that pregnant employees only need to be treated the same as other non-pregnant employees.  Instead, the Court slightly relaxed the similarly-situated standard in the prima facie case, rejected certain business justifications, and expanded what could constitute pretext for discrimination. 

According to the Court’s opinion, the employer requires delivery drivers to carry up to 70 pounds.  During her pregnancy, the plaintiff was medically restricted to carrying only 20 pounds.  The employer refused to waive the lifting requirement, to temporarily transfer her to an alternative position or to permit her to work.  She took unpaid leave and ultimately lost her medical coverage.  This lawsuit followed. 

The employer defended its refusal to waive its lifting requirements or to transfer her to a light duty position on the basis that it only accommodated employees with workers’ compensation injuries, who lost their DOT certifications, or who were covered by the ADA (which, should be noted, does not include pregnancy as a disability or require an employer to eliminate an essential job function, but could require a transfer to another, open position).  The plaintiff contended (over the employer’s objection) that it also accommodated other employees with physical limitations.  A union steward testified that the only physical limitations that the employer did not accommodate with a transfer were pregnant employees.   The employer was given summary judgment (on the basis that the plaintiff did not identify similarly situated employees who were treated better), which was affirmed on appeal.  Those courts would only permit the pregnant plaintiff to compare herself to employees injured off the job.

The Court noted that the Pregnancy Discrimination Act has two provisions at issue in the litigation:  the incorporation of pregnancy into the definition of Title VII’s sex discrimination and a duty to treat pregnancy physical limitations “the same . . . .as other persons not so affected but similar in their ability or in­ability to work.” 

The Court rejected the employer’s argument that the second clause in the PDA merely clarifies the meaning of sex discrimination because the clarification would render the first clause superfluous.  Therefore, the Court rejected the employer’s proposed analysis that “courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the em­ployer has violated Title VII.”  That analysis would exist even in the absence of the second clause: “If the second clause of the Act did not exist, we would still say that an employer who disfa­vored pregnant women relative to other workers of similar ability or inability to work had engaged in pregnancy discrimination.”

The  Court also rejected the plaintiff’s argument that an employer must accommodate every pregnant employee’s restrictions if it accommodates any other employee’s restrictions.  The Court found that this granted pregnant employees  “most favored nation” status which would discourage an employer from accommodating the physical restrictions of long-time employees, those employees with special, extraordinarily hazardous and/or necessary skills or elderly employees.  Indeed, seniority is a enumerated defense to a Title VII claim.

The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with simi­lar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their imple­mentation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpre­textual reason for doing so.

The Court refused to give any significant weight to last year’s EEOC PDA guidance which advised employers to provide the same accommodations to pregnant employees that it provides to employees with work injuries. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with its

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

The Court observed that the PDA was enacted to overrule the Court’s prior decision in General Elec. Co. v. Gil­bert, 429 U. S. 125 where the employer provided sickness and accident insurance to non-pregnant employees and the Court found no sex discrimination because women received the same coverage that men did.  Simply including pregnancy into Title VII would not have changed the result in Gilbert, which was the intent of the second clause in the PDA.

While pregnancy discrimination claims are to be treated similarly to any other sex discrimination claims, they will differ in three material respects.  For instance, the similarly-situated standard must be relaxed:

an individual plaintiff may establish a prima facie case by ‘showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under’ Title VII. . . . Nei­ther does it require the plaintiff to show that those whom the employer favored and those whom the employer disfa­vored were similar in all but the protected ways.

In particular, the Court laid out the shifting burdens of proof as follows:

First, the plaintiff must show:

a) that she belongs to the protected class,

b) that she sought accommodation,

c) that the employer did not accommodate her, and that the employer did accommodate others “simi­lar in their ability or inability to work.”

Second, the employer would need to provide a legitimate and nondiscriminatory reason for refusing to provide the requested accommodation.

 

But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accom­modates. After all, the employer in Gilbert could in all likelihood have made just such a claim.

Third, the plaintiff must show that the employer’s reason is pretextual.

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on preg­nant workers, and that the employer’s “legitimate, nondis­criminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large per­centage of nonpregnant workers while failing to accommo­date a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employ­ees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate preg­nant employees give rise to an inference of intentional discrimination.

In response to the dissent’s concern that the  Court was imposing liability under a disparate impact theory, it notes that it intends for “continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination.”

Ultimately, the Court reversed the employer’s summary judgment, but left open the possibility that the employer’s explanation could ultimately prevail on summary judgment because it was expressing no opinion as to whether the plaintiff had introduced sufficient evidence to show pretext.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

 

EEOC’s New Pregnancy Discrimination Act Enforcement Guidance Expands Law

Last week, the EEOC issued updated Enforcement Guidance concerning the Pregnancy Discrimination Act, which had last been issued in 1983.  Although it is not a binding regulation, this is the document which EEOC investigators are required to apply in conducting investigations and can be used in litigation as an influential statement of the law by the agency charged with enforcing it.    As expected, the new Enforcement Guidance expanded the reach of the PDA.   Moreover, the EEOC now contends that all pregnant employees are entitled to reasonable accommodations offered to disabled employees under the ADA, maternity leave (from the first day of work) and light duty under a variety of legal theories.  Not all courts have adopted the EEOC’s expansive view of the PDA, but employers can expect an increase in litigation on these issues by private plaintiffs and the EEOC until these issues are definitively resolved.

The PDA amended Title VII so that “discrimination on the basis of sex” would include “pregnancy, childbirth or related medical conditions.”  In particular, the following provision was incorporated into Title VII:

(k) 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 shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

This PDA has been interpreted to include discrimination against women based on their desire or intention to eventually become pregnant or because they are capable of becoming pregnant.  This can occur, for instance, when an employer engages in paternalistic decisionmaking and decides that certain jobs or duties are too dangerous for pregnant employees or women in general.  The EEOC considers “related medical conditions” to include gestational diabetes, preeclampsia, and lactation.

Reasonable Accommodations.  The EEOC concedes, as it must, that the ADA provides that pregnancy is not a disability.  However, “[p]regnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past.” More importantly, in a footnote, the EEOC observed that:

The expanded definition of "disability" under the ADA also may affect the PDA requirement that pregnant workers with limitations be treated the same as employees who are not pregnant but who are similar in their ability or inability to work by expanding the number of non-pregnant employees who could serve as comparators where disparate treatment under the PDA is alleged.

In other words, if the ADA requires an employer to provide a reasonable accommodation to a disabled employee, it must also provide the same accommodation to a pregnant employee in order to show uniform treatment.  Therefore, the EEOC expanded upon this argument to announce the following:

Title VII requires that individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Thus, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job). However, an employer may treat a pregnant employee the same as other employees who are similar in their ability or inability to work with respect to other prerequisites for obtaining the benefit that do not relate to the cause of an employee's limitation. For example, a pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee's request in light of whether the change would constitute an "undue hardship," since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.  (italics added for emphasis).

Pregnant workers can also be “regarded” as disabled under the ADAA or have a history of a disability.

Lactation.  As mentioned, the EEOC considers lactation to be a related medical condition to pregnancy.  The EEOC’s FAQ notes that “if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.”  Moreover,

[i]n addition to being protected under the PDA, female hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private place for breastfeeding employees to express milk.

Light Duty.  Many employers provide light duty to employees injured on the job who are receiving workers compensation.  As a Sixth Circuit panel ruled in December, the EEOC now contends that these employers must similarly provide light duty to pregnant employees who need and request it if the employer:

provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.

Contraception Coverage.  The EEOC also considers the PDA to prohibit “discrimination related to a woman's use of contraceptives.   It rejects in footnote 38 of the Guidance the argument (adopted by some courts) that contraception coverage is not an issue under the PDA because it arises before pregnancy because contraception applies to a “potential pregnancy.”  Therefore, “an employer could not discharge a female employee from her job because she uses contraceptives.”

 Although it concedes that there may be religious exemptions under the Supreme Court’s recent Hobby Lobby  decision, the EEOC views the exclusion of contraception coverage as sex discrimination under the PDA:

Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. To comply with Title VII, an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer's health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered.

Maternity Leave.  The EEOC also argues that denying or limiting the length of maternity leave – even under a uniformly applied policy – can create an illegal discriminatory impact on pregnant women:

A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.

If a claimant establishes that such a policy has a disparate impact, an employer must prove that the policy is job related and consistent with business necessity. An employer must have supporting evidence to justify its policy. Business necessity cannot be established by a mere articulation of reasons. Thus, one court refused to find business necessity where the employer argued that it provided no leave to employees who had worked less than one year because it had a high turnover rate and wanted to allow leave only to those who had demonstrated "staying power," but provided no supporting evidence. The court also found that an alternative policy denying leave for a shorter time period might have served the same business goal, since the evidence showed that most of the first year turnover occurred during the first three months of employment.

Parental Leave.  While an employer need only provide maternity leave for as long as the mother is physically restricted, if it provides additional “bonding” leave to the mother, the EEOC says that it must similarly provide such child-care leave to the father under the PDA:  “If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.”  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Hears Arguments On Mandatory Maternity Leave

This morning, the Ohio Supreme Court heard oral argument on whether the Ohio Civil Rights Commission exceeded its authority by requiring Ohio employers to provide a reasonable amount of maternity leave to new employees even when similar leaves are not provided to new male employees. In particular, an employee was fired by an Ohio nursing home when she required maternity leave before she had been employed at least one year as required by the employer's uniformly applied leave policy. No employees are given a leave of absence under the policy until they have been employed at least one year.

Certain provisions of the Ohio Civil Rights Act mirrors the federal Pregnancy Discrimination Act, which prohibits discriminating against women on account of pregnancy. There is no provision under the federal or state statute explicitly requiring a leave of absence for female employees that is not also provided to male employees; it merely prohibits discrimination. Some courts have ruled that the PDA does not require maternity leave unless males are given similar leaves of absence; thus the FMLA was created. The OCRC determined, however, that women would never be able to keep jobs if they got pregnant under such policies and has required Ohio employers to provide a reasonable amount of maternity leave even if they did not otherwise provide any leaves to other employees. In doing so, the OCRC relies on a single federal court decision.

An argument was made that the OCRC exceeded the Ohio constitution by creating a rule which lacks explicit statutory support. To the extent that the OCRC is attempting to create public policy, the argument goes, that should be left to the Ohio General Assembly. Citation was made to three other states which have enacted such laws.

The Attorney General's office also tried to draw an analogy to the reasonable accommodation provisions of the ADA and Title VII's religious discrimination clause. However, unlike the PDA, those statutes explicitly require employers to provide a reasonable accommodation. Thus, merely because an employer is required by statute to provide a leave as a reasonable religious or disability accommodation does not mean that the PDA (or corresponding Ohio statute) requires the same in the absence of similar statutory language.

The Ohio Supreme Court was provided with an earlier opportunity this year to address whether the Ohio statute requires reasonable accommodation of lactating mothers in Allen v. Totes/Isotoner Corp, but it declined to address this issue at that time.

Insomniacs can watch the oral argument in Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, No. 2009-0756 here or on the PBS Ohio Channel.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore.

This morning, the Ohio Supreme Court issued a decision which had initially promised to decide whether Ohio law prohibited an employer from discriminating against an employee who was lactating. However, the per curiam decision (i.e., non-binding authority) remarkably avoided that issue altogether and, instead, affirmed an employer’s right to fire an employee for insubordination when the employee admittedly took unauthorized breaks without the employer’s knowledge or consent. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231. The Court’s action might not have raised an eyebrow if it were not for the facts of the case and that many people in Ohio have watched the oral argument previously broadcast on the Ohio Channel (which is part of PBS).

By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.

When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.

As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.

Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.

However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).

Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?

In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Employers Need Not Recalculate Pension Contributions Following 1978 Passage of Pregnancy Discrimination Act.

Today, in a long-awaited decision, the Supreme Court – in a 7-2 opinion – ruled that AT&T need not recalculate the pension credits or benefits awarded to female retirees based on maternity leave taken prior to the 1978 passage of the Pregnancy Discrimination Act. Hulteen v. AT&T. The Court ruled that the PDA was not retroactive and did not affect pension calculations and pension credits already made to female employees and retirees before its passage. Rather, the pre-PDA pension credits were not discriminatory under § 703(h) of Title VII – which creates a safe harbor for compensation plans based on bona fide seniority systems. Moreover, the Court also ruled that the recently passed Ledbetter Fair Pay Act similarly did not render discriminatory pension credits and pension benefits calculated before the passage of the PDA.

According to the Court’s opinion, AT&T—like many employers -- for many years awarded fewer pension credits to women for pregnancy/maternity leave than it did for other types of medical leave. In the 1960’s and early 1970’s, employees on disability leave received full pension credit, but employees on personal leave or pregnancy leave only received up to 30 days of pension credit. In 1976, the Supreme Court ruled in Gilbert v. General Electric that pension plans which provided less credit for pregnancy leave than other disability leaves did not constitute unlawful sex discrimination under Title VII. The following year, Congress amended Title VII by enacting the Pregnancy Discrimination Act to provide that it constituted sex discrimination to treat pregnancy less favorably than other medical conditions. AT&T immediately amended its pension plans so that all maternity leaves following the PDA’s passage would receive the same pension credits as other disability leaves. However, AT&T did not go back and retroactively award pension credits to current female employees who had previously taken maternity leave under the former pension plan and did not increase the pension benefits of retired female employees who had taken maternity leave under the former pension plan prior to the passage of the PDA.

Lawsuits and EEOC charges ensued against AT&T and the “baby bell companies.” The Courts of Appeal split on this issue (with the Seventh and Sixth Circuits ruling in favor of the employers). In the present case, four women – three retirees and a current employee – filed EEOC Charges because they were disadvantaged by two to six months in the calculation of their pension benefits on account of maternity leaves which they took prior to the passage of the PDA. The EEOC found probable cause of discrimination and issued right-to-sue letters. They filed suit in California and the Ninth Circuit Court of Appeals ultimately ruled that AT&T’s refusal to issue retroactive pension credits violated Title VII and the PDA. The Supreme Court reversed.

The Court found that the pension plan was part of a bona fide seniority system which AT&T had utilized since approximately 1914. “As we have said, ‘[a] ‘seniority system’ is a scheme that, alone or in tandem with non-‘seniority’ criteria, allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase.” California Brewers Assn. v. Bryant, 444 U. S. 598, 605–06 (1980).” Even though it would violate the PDA to have such a seniority system today, “a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA. “[S]eniority systems are afforded special treatment under Title VII[‘s]” § 703(h):

“Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .” 42 U. S. C. §2000e–2(h).

“Benefit differentials produced by a bona fide seniority based pension plan are permitted unless they are “the result of an intention to discriminate.” TWA v. Hardison, 432 U. S. 63, 81 (1977). The Court declined to treat pregnancy discrimination differently from race, age or national origin discrimination under § 703(h). The Court noted that it had reached a similar decision regarding the arguably racist calculation of pension benefits before the passage of Title VII in Teamsters v. United States, 431 U. S. 324 (1977). Moreover, because Gilbert had already ruled that such pension plans did not violate Title VII, the Court declined to now reverse that decision and find that the pre-PDA pension plan was discriminatory on its face. (This holding effectively also rejected the plaintiffs’ argument that the pension plan also violated the Ledbetter Fair Pay Act.). In addition, because there was nothing in the PDA to indicate that Congress intended a retroactive application of the Act and the general rule is that legislation applies only prospectively, the Court declined to give retroactive affect to the PDA to cover pension calculations made before the passage of the Act. Finally, the Court concluded that it would read § 703(h) out of Title VII to destroy the safe harbor anytime new legislation was enacted.

Justice Ginsburg dissented on the grounds that, among other things, Gilbert had been wrongly decided (based on prior Court of Appeals decisions and EEOC guidelines).

Insomniacs may read the full Supreme Court opinion at http://