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McKenna Employment Bulletin – November 2013

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Your Employees Can File Pregnancy Discrimination Claims

In Peart v. Latham & Watkins LLP, 2013 U.S. Dist. LEXIS 152115, the Plaintiff, a former legal secretary, filed a Title VII claim asserting that she was fired because the firm didn't want to accommodate her pregnancy. She alleged she learned she was pregnant several months after starting at Latham. She took short-term disability leave due to "extreme medical complications" related to her pregnancy. She claimed that when she was fired the HR director said, “she was no longer needed," adding that "her pregnancy complications were not his problem." The Plaintiff later learned that the HR director had told other Latham personnel that the plainiff had been terminated because of "damn thirteen weeks [of] morning sickness" and that her pregnancy was "not [their] concern."


Pregnancy discrimination falls within Title VII, as well as many state Human Rights Acts. Congress enacted the Pregnancy Discrimination Act in 1978. That Act amended Title VII to prohibit an employer from discriminating "on the basis of pregnancy, childbirth, or related medical conditions," (42 U.S.C. § 2000e(k)), in hiring or firing; compensation; terms, conditions, or privileges of employment; or otherwise limiting, segregating, or classifying employees in a way that would adversely affect their status as employees. 42 U.S.C. § 2000e-2(a).


The law firm in Peart filed a motion to dismiss, claiming that the Plaintiff had not pled a cause of action under Title VII. The District Court disagreed. The District Court held that while the isolated comments were insufficient to plead a hostile work environment, the comments were sufficient to support a claim for Title VII pregnancy discrimination.


Untimely Application And Lesser Skills Stops Discrimination Charge

In Johnson v. General Bd. of Pension & Health Benefits of the United Methodist Church, No. 12-1699, October 21, 2013, Seventh Circuit, the plaintiff alleged in a Title VII action that the employer denied her a series of requested promotions, subjected her to sexual harassment based upon a co-worker’s showing of a video on an office computer and ultimately terminated the plaintiff on account of her race. However, the record showed that the plaintiff failed to make timely application for two requested promotions. She was properly rejected for two other requested promotions because decision-makers honestly believed that the successful candidates displayed greater skills than the plaintiff. Further, the plaintiff failed to introduce evidence of a comparable co-worker who received more favorable treatment to support her claim that her termination for secretly recording phone conversations of her co-workers over a several month period was based on her race. Finally, the single brief display of male nudity on the office computer was insufficient to establish a viable sexual harassment claim.


Terminating Older Performing Workers And Hiring Younger Replacement Workers Can Result In Age Claims

In Mullin v. Temco Machinery, Inc., No. 13-1338, October 10, 2013, Seventh Circuit, the 56-year-old plaintiff in an age action alleged that his employer fired him from his salesman’s job on account of his age. The Court found that the facts showed an age violation. This was because the defendant had recently terminated another 50-year-old salesman and replaced him with a younger employee; the employer’s explanation that the plaintiff, who was a top selling salesman, had become too expensive to employ was refuted by the fact that the employer replaced him with two younger inexperienced employees at little cost savings; and the record contained a factual dispute as to whether the incident that the employer claimed was the reason for the plaintiff’s termination actually occurred. Finally, the record did not support the employer’s claim that the plaintiff was underperforming in terms of sales at the time of the termination.


No Tolerance For Alcohol On The Job Stops A Race Claim

In Lambert v. Peri Formworks Systems, Inc., 2013 WL 3814331 (7th Cir. 2013), the employer terminated an African-American employee for being intoxicated in a work area where workers operated heavy machinery and maneuvered large concrete objects. The termination was pursuant to the employer’s policy of no tolerance for employees consuming alcohol on the job. The employee filed a claim alleging race discrimination. The Court found the termination did not occur because of the employee’s race or in retaliation for his complaints about sexual harassment. The Court found there was nothing suspicious about the timing of any statements made by the employer’s representatives and there was no evidence of disparate treatment.


Follow Your Progressive Discipline Policy To Stop Claims

In Pearson v. Massachusetts Bay Transp. Authority, 2013 WL 3507785 (1st Cir. 2013), the plaintiff alleged that the employer’s reason for terminating him was a pretext for race discrimination. The Court found, however, the reason was not a pretext because the employee had been terminated based on repeated insubordination. Further, the employer had reached the end of the employer’s progressive discipline sequence and the next disciplinary action for the employee was termination.


This Employment Bulletin is intended to provide information of general interest and does not constitute legal advice. Readers should consult with their counsel before taking any action based on the information in this publication. All rights reserved. Copyright 2013, McKenna Storer. 

Categories Employment Bulletin Publications



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