Abortion Protection

Jane Doe, a graphic artist for a used-car insurer, learned she was pregnant in May 2000. She told her supervisor Fred Kohl and discussed making up time missed from work due to doctor's appointments. In August, Doe's doctor detected severe deformities in the fetus and recommended an abortion.

Doe's husband contends he contacted Kohl to arrange for a day off for the abortion procedure and subsequently for the following week off, during which the couple held a funeral for their child. Nonetheless, on the day of the funeral, Kohl fired Doe for job abandonment, saying she failed to comply with the company's attendance rules.

Doe sued under the federal Pregnancy Discrimination Act (PDA). The District Court granted summary judgment to the defendant, but sealed the documents and docket in the case, protecting it from public view. So the case first came to light May 30, when the 3rd Circuit released its decision. In a case of first impression, the court found for Doe, holding that the PDA prohibits discrimination against a woman because she has exercised her right to have an abortion.

While the case was unusual because women typically conceal abortions from their employers, Doe v. C.A.R.S. Protection Plus set off alarm bells in the employment defense bar because of the risk that some supervisors may let their personal objection to abortion taint their employment decisions.

"The decision is significant because it makes it clear that employers who may want to exercise some sort of moral judgment on an individual's right to choose and take employment action against her can't do that," says Theodore Schroeder, a shareholder at Littler Mendelson.


Flagrant Facts

The facts of Doe were particularly egregious, as it was evident that the plaintiff wanted the baby. Her employer showed no sympathy, firing her on the day of the funeral. The 3rd Circuit pointedly questioned the defendant's fairness, noting that C.A.R.S.'s leave policies were "somewhat less than compassionate," providing no paid personal or sick leave.

"The facts of the case were harsh and may have helped sway the decision," says Sherrill Colombo, a partner at
Cozen O'Connor.

Cases claiming discrimination based on abortion are very rare, and the 3rd Circuit judges had little precedent to guide them. But they did cite a 6th Circuit case from 1996 involving Kimberly Turic, a teenager who was fired after she told fellow employees at a Michigan Holiday Inn that she was considering having an abortion. She later decided against one.

In Turic v. Holland Hospitality Inc., the court found that Turic was discriminated against because the PDA protects women who exercise their right to an abortion. The court added that an employer "cannot take adverse employment action against a female employee for merely thinking about what she has a right to do."

The 3rd Circuit agreed in Doe, noting that the PDA protects women from discrimination based on "pregnancy, childbirth or related medical conditions" and concluding that abortion is such a related condition. The judges also cited EEOC guidelines stating that women are protected from adverse employment actions resulting from an abortion. And they cited a phrase from the PDA's legislative history saying the act covers women who chose to terminate their pregnancies.

"They looked at the legislative history and the EEOC guidance and came to the conclusion that abortion is part and parcel of what the law was designed to protect," says Michael Moore, of counsel at McNees Wallace & Nurick.


Nexus Established
Once the court had concluded that abortion is covered under the PDA, it focused on establishing a nexus between the adverse employment action and the protected class.

The evidence revealed inconsistencies in how Kohl treated employee absences, supporting Doe's claim of disparate treatment. Kohl said he fired Doe for violating a policy that required employees to call in every day they were sick, but his secretary testified that there was no such policy. A man who suffered a heart attack while working at C.A.R.S. testified that he was paid during his absence even though neither he nor his wife called in every day.

The court also noted that Doe's sister-in-law, who was the office manager, heard Kohl discussing Doe's situation and commenting, "She didn't want to take responsibility." While the meaning of the comment is ambiguous, "what is clear is that this particular remark may raise a reasonable inference that the abortion was a factor in terminating Doe's employment," the court said.

Finally, the court said that the temporal proximity of the abortion to Doe's firing three working days later satisfied the plaintiff's prima facie case of causal connection between the two events. "The combination of treating nonpregnant disabled people better, making comments about abortion and terminating the employee three days after the abortion all point to that nexus between being pregnant or having an abortion and getting fired," Moore says.


Emotional Responses

Doe underscores the importance of establishing clear attendance and leave policies and enforcing them uniformly. While employers may want to deviate out of sympathy for a particular sick employee, case-by-case enforcement is perilous. It also demonstrates the importance of documenting such routine occurrences as requests for time off--while Kohl claimed Doe violated the rules on time off, because he had no written documentation, it became his word against Doe's husband's.

While these are common-sense practices that apply to most discrimination avoidance programs, abortion raises some unique challenges for employers.

"Given the emotional nature of the underlying request for a leave, this may bring on an emotional response [by the supervisor]," Schroeder notes.

That puts a new burden on employers to assure that their supervisors' personal beliefs on abortion don't intrude on their employment decisions. Training on pregnancy discrimination should point out that abortion also is covered, at least in the 3rd and 6th Circuits.

"Going forward, employers are going to have to make sure they don't treat a request for time off for terminating a pregnancy any differently than they treat a woman who is going forward with her pregnancy," says Colombo. "There could be personal opinions by the supervisor who has a problem with a woman having an abortion, but regardless of that, the employee is protected by the Pregnancy Discrimination Act."

Senior Editor

Mary Swanton

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