Baby Bump: Pretext for Pregnancy Discrimination

March 5, 2014. Recently, the 6^th Circuit Court of Appeals found that an employer’s policy to make accommodations only for work restrictions from work-related incidents was a pretext for pregnancy discrimination. Latowski v. Northwoods Nursing Center, No. 12-2408 (6th Cir. Dec. 23, 2013). After her boss discovered she was pregnant, she requested that a certified nursing assistant obtain a doctor’s note with no work restrictions. The employee’s doctor faxed a note with a fifty-pound restriction. The nursing home employer then fired the pregnant employee. The employee claimed the nursing home violated Title VII when it discharged her due to her sex, which includes pregnancy. The 6^th Circuit Court of Appeals analyzed the claims under the indirect evidence framework described in Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6^th Cir. 2000) and the employee can show that the proffered reason for a discriminatory policy is pretextual under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Although the nursing home claimed that it had a legititimate, nondiscriminatory reason for terminating the nursing assistant from employment (“an economics-based policy of refusing to accommodate restrictions arising from injuries incurred outside the workplace”), the Court found that a reasonable jury could conclude that this policy was simply a pretext to discriminate against pregnant employees. The court noted that the employer made various comments, including that the employer wouldn’t want her to lose her baby, that it would be liable if something happened to the baby, that her work would jeopardize her health or that of her unborn child, and that her belly would be in the way. The fact that these comments were made by those in management at the nursing home and were directly related to the decision to terminate employment were also major factors in the Court’s decision. The Court noted “a company’s fear of prenatal injury, no matter how sincere, cannot justify discrimination against an employee who is capable of doing her job.”

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