Firing An Employee for Having an Abortion, Quirky Question # 46

Quirky Question # 46:

We are a privately held company that runs a large software sales organization.  The family that started our company and that still dominates its executive ranks has conservative values.  Among those issues about which the owners feel strongly is the abortion issue.  They do not believe that women should have abortions under any circumstances.

One of our employees who was pregnant recently learned that there were serious problems with her unborn child.  Although her own life would not have been in jeopardy had she carried the child to term, her physicians recommended that she terminate the pregnancy.  She and her husband agonized over this decision but decided to follow the medical recommendations.

I am the HR Director and I have now been instructed to terminate our employee’s employment.  No explanation has been offered for why the company wants to discharge her.  I do know, however, that she has not previously had any performance problems.  To the contrary, she always has been highly regarded, a fact that is reflected in her glowing annual performance appraisals.  Moreover, the discharge decision is not being motivated by any economic downturn.  Our company is exceeding our year’s financial goals and no other employees are being laid off.

My instincts tell me the directive I have received is motivated by the fact that our employee decided to have an abortion, though no one specifically provided that explanation to me.  Nevertheless, this directive just does not sit well with me.  If I terminate her employment when she returns from the leave associated with the medical procedure and the funeral of her child, will I be exposing the company to risk?

Dorsey’s Analysis:

As I have stated in other Blog analyses, trust your instincts. Based on the facts you report, you would be exposing the company to risk. Terminating an employee because she had an abortion violates Title VII, and the Pregnancy Discrimination Act (PDA) contained therein.

Although this particular issue has not been litigated frequently, the federal courts that have examined this issue have held that is impermissible for an employer to terminate an employee because she elected to have an abortion. This analysis is supported by the legislative history of the PDA and the Equal Employment Opportunity Commission (EEOC), to which the courts often defer when adjudicating issues relating to employment law.

The PDA states, “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.” 42 U.S.C. § 200e(k). The question, therefore, is whether an abortion is a “related medical condition” under the statute.

As referenced above, the EEOC has weighed in on this issue. The EEOC has stated that,

“The basic principle of the [PDA] is that women affected by pregnancy and related medical conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired . . . merely because she is pregnant or has had an abortion.” 29 C.F.R. pt. 1604 App. (1986).

The EEOC’s interpretation of the PDA also is consistent with the legislative history of the statute. “Because the [PDA] applies to all situations in which women are ‘affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.” H.R. Conf. Rep. No. 95-1786 at 4 (1978), reprinted in 95th Cong. 2d Sess. 4,1978 U.S.C.C.A.N.4749, 4766.

In a very recent case from the Third Circuit Court of Appeals, Doe v. C.A.R.S Protection Plus, Inc., et al., Nos. 06-3625, 06-4508 (May 30, 2008), the appellate court analyzed these issues in light of the language of the PDA, its legislative history and the EEOC’s position, and stated, “We now hold that the term “related medical conditions” includes an abortion.”

The C.A.R.S case went up to the Third Circuit after the District Court granted the employer summary judgment on the plaintiff’s Title VII claim. The appellate court reversed.

The facts in C.A.R.S were straightforward. One of the company’s employees discovered that there were serious medical problems associated with her pregnancy. The employee learned her unborn child had severe deformities leading her physician to recommend the pregnancy be terminated. She and her husband evaluated the recommendation and elected to follow their physician’s advice. Because C.A.R.S had a miserly leave policy for its employees (the appellate court charitably described the leave policies as “less than compassionate”), which did not provide for any personal or sick leave and five days of vacation only after an employee had been employed for at least one year, the employee’s husband had kept the company apprised of his wife’s medical visits. He also requested leave time for his wife for the funeral and asked whether she could use her vacation week to grieve following the funeral. There was conflicting testimony about whether this request had been granted by the employer. But, there was no dispute that on the day of the funeral, the company packed up the employee’s personal belongings and terminated her employment.

The company attempted to demonstrate that its discharge decision was not discriminatory. Rather, the company argued, it was based on its policies prohibiting any personal or sick leave. The appellate court, however, found that those policies were not uniformly applied and that several male employees had been given time off for medical-related conditions (mental illness, heart attack, back problems, etc.). The evidence also demonstrated that there was no uniform policy regarding whether an employee was required to call in to the company to request time off for an illness.

Based on these facts, the appellate court found that Doe (the District Court agreed to allow the plaintiff to be identified anonymously) had made out a prima facie case of pregnancy discrimination. The Third Circuit also found that Doe had raised a fact issue as to whether the reasons articulated by C.A.R.S for its decision were pretextual. Here, the court pointed to some of the same evidence that had been used to establish the prima facie case, as well as a comment by Doe’s supervisor that the lower court had inappropriately treated as a “stray comment.” The appellate court also found that the temporal proximity between the employee’s decision to terminate her pregnancy and the company’s decision to discharge her was “unusually suggestive,” noting that temporal proximity alone may be sufficient to create an “inference of causality” sufficient to defeat summary judgment.

The Third Circuit sent the case back to the trial court for further proceedings. Assuming it is not resolved through settlement, the jury will have to decide whether the evidence supports the argument that Doe was fired because she elected to terminate her pregnancy or whether she was fired for “abandoning” her job, as alleged by the company. The underlying legal issue on which Doe’s case is grounded, however, has been resolved – it is a violation of Title VII and the PDA to terminate an employee because she elected to have an abortion. The task for the jury will be to make a factual determination regarding the employer’s true motivation for discharging the employee.

In the fact pattern presented in your question, you posit that you have been directed to terminate the employee who recently had an abortion. I suggest that you explore with your company’s management the underlying reasons for why they wish to terminate the employee. If they acknowledge that their motivation to discharge her is driven by her decision to have an abortion, you should explain that such a decision would constitute a violation of Title VII and the PDA. If they direct you to terminate her employment anyway, you have an ethical decision to make. Consider it in the broader context of whether you would engage in other illegal conduct simply because you supervisors directed you to do so. For example, if your boss told you to fire someone based on his race, age or other protected classification, would you do so?

Dorsey & Whitney

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