Post-Pregnancy Discrimination?

Q: When is an employee who is not pregnant and not trying to become pregnant still covered under the Pregnancy Discrimination Act (PDA)?

A: When she recently gave birth.

The PDA amended Title VII of the Civil Rights Act of 1964, covers employers with 15 or more employees and prohibits discrimination in employment on the basis of pregnancy, childbirth, or related medical conditions.

Now here's the case. An employee returns to work following a three month leave of absence for the birth of her child. Shortly after her return to work she expresses an interest in being promoted to a vacancy for store manager. During the search to fill the vacancy the employee begins acting as the interim store manager.  The next month the employee is interviewed by the HR manager for the store manager role. Approximately six to eight weeks later the company President interviews the employee for the position.  The next week the employee is told another candidate has been hired for the position. The next day the new manager's first pay check is ready, which usually takes two weeks to process.  The employee quits three days later and sues her employer, her employer's parent company and two senior managers for discrimination under the PDA.   

So the first question the court addresses is whether an employee is protected under the PDA when she is no longer pregnant or trying to become pregnant. To this the court provides a definitive, resounding and affirmative response, "...women who very recently gave birth...are unquestionably within the protected class of pregnant women."  

OK.  So that begs the question for how long? To this the court indicates the answer to this question "requires selecting a temporal cutoff based on the facts of the given case." This is a.k.a., "it depends."  The court then reviews prior case law and finds "a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth."  

OK.  So next we have to determine at what point in time the alleged act of discrimination took place.  Was it the date the employee first expressed an interest in the position e.g., about 3.5 months after giving birth or was it the date the employer made its hiring decision e.g., about six to 6.5 months after giving birth? The court found it was the former in this case and declined to grant the employer's motion for summary judgment.  How did they reach that decision?  

• First the court noted that it "must draw all inferences in the plaintiff's favor."
• The timing of the newly hired manager's first payroll check was "suspicious"
• The delay in hiring the new manger was atypical
• Put together, it was plausible that all of the employer's actions following the employee's initial expression of interest were merely a "sham"
• As a result, the Plaintiff is "comfortably situated among similar pregnancy discrimination cases"  

Lessons learned and food for thought.

• Keep yourself safe. Note the employee sued two senior managers as well as the direct employer and the parent company. Train your managers on employment laws.
• Be prepared. The court noted that the President seemed unprepared for the interview - she did not have a copy of the employee's resume nor did it appear she had read it - thus contributing to the appearance of a sham. Train your managers on interviewing skills.
• Recall that the employee served in the role of interim or acting store manager. If she was good enough on a temporary basis, why not on a regular basis?
• Check out the EEOC's recent guidance just published on July 14th addressing these issues and more.