In a case of first impression from the Third Circuit Court of Appeals, Doe v. C.A.R.S. Protection Plus, Inc., the court held that a female employee who was fired less than a week after having an abortion has a claim for discrimination under the Pregnancy Discrimination Act.
Plaintiff worked as a graphic designer for a used car insurer. About a year after she was hired, she learned she was pregnant and told her supervisor, who was also a part-owner of the company. Due to some problems with her pregnancy, she requested time off to take some medical tests, which the company approved. Eventually, plaintiff was advised by her physician that her fetus had severe deformities, and he recommended that she terminate her pregnancy. Plaintiff contended that her husband called the company, advised it that she would be terminating her pregnancy and requested a one week vacation for her to have the procedure. Although plaintiff contended her vacation request was approved, she was discharged less than a week after she had the procedure.
In response, plaintiff filed a gender discrimination case under the Pregnancy
Discrimination Act (PDA), alleging that she was discharged because of
her abortion, which, she argued, constituted pregnancy discrimination
under the PDA.
In analyzing the case, which the court noted had never before been addressed in the Third Circuit, the court first noted that an EEOC guidance states that “a woman is . . . protected against such practices as being fired . . . merely because she is pregnant or has had an abortion.” It also observed that the legislative history of the PDA provides that “no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.” Relying on these two sources, the court concluded that an “employer may not discriminate against a woman employee because she has exercised her right to have an abortion.”
The court then turned to the issue of whether Plaintiff had a viable discrimination claim under the PDA. Tailoring the McDonnell Douglas burden-shifting framework to the PDA, the court announced a four-part test for establishing a prima facie pregnancy discrimination case. The Plaintiff must offer evidence that:
1. She was pregnant and that her employer knew it;
2. She was qualified for her job;
3. She suffered an adverse job action; and 4. There was a nexus between the plaintiff’s pregnancy and the job action.
The parties agreed that plaintiff established the first three elements, but the defendant contended that there was no nexus between the plaintiff’s pregnancy and her discharge and that the reason she was discharged was because of her absences.
However, the court rejected this argument, finding that there was a nexus between plaintiff’s pregnancy and her discharge based on the fact that the employer treated other non-pregnant workers who were temporarily disabled better than the plaintiff. The facts showed that other employees with short-term disabilities were not required to call in daily during their absence as plaintiff was required to do, and that there were no uniform rules governing employee absences. In fact, one of the defendant’s witnesses admitted that the company had a “separate set of rules” for each employee. Based on this evidence, the Court concluded that plaintiff established a prima facie case of pregnancy discrimination.
The court went on to find that there was an issue of fact as to whether defendant’s stated basis for discharging plaintiff-that she had abandoned her job-was pretextual. The court concluded that plaintiff had offered some credible evidence to support her claim that her husband had called in to explain her absences. Thus, the court reversed the district court’s award of summary judgment to the defendant.
Although the Doe case is not controlling in the State of Georgia, as it is a novel issue and one that, to our knowledge, has not been addressed in the Eleventh Circuit, it should be good law for future cases involving Georgia employees.