Wednesday Federal Employment Law Update- Pregnancy Discrimination

Hello all, and welcome back for your Wednesday Federal Employment Law Update.  This week, we discuss the case of Slater v. Energy Services Group Int’l. Inc., 2011 WL 4425306 (11th Cir. Sept. 23, 2011), a case where the Eleventh Circuit Court of Appeals affirmed summary judgment for the employer in a claim for pregnancy discrimination under Title VII and Florida’s state statutory equivalent, the Florida Civil Rights Act. 

Since 1977, with the passage of the Pregnancy Discrimination Act, pregnancy discrimination has been a recognized form of gender discrimination.  Claimants must meet the same standards for a prima facie case, including rebutting legitimate, non-discriminatory bases for termination by proving pretext. 

In Slater, the plaintiff was terminated from her position as a vision test technician after she allegedly failed to properly administer a vision test.  Plaintiff alleged that the true reason for her termination was excessive absences related to her pregnancy.  However, the record showed that Defendant had disciplined her regarding attendance and other performance issues before she ever became pregnant with both verbal and written counseling. 

Plaintiff also claimed retaliation based on an e-mail that she sent one month prior to her termination attempting to assure her superiors that she could perform her job despite being pregnant.  The Court held that this e-mail did not constitute “protected activity” triggering a retaliation claim because Plaintiff was not complaining of pregnancy discrimination, but rather simply sending a positive e-mail regarding her purported ability to perform her job at a competent level. 

This was a case with weak facts, which unfortunately does no justice to the reality of pregnancy discrimination.  While the case law does not require an employer to excuse unlimited absences, employers must be weary of assuming that pregnant employees will be problematic and give these employees the benefit of the doubt in these temporary circumstances, or face the prospect of a discrimination claim brought by a sympathetic plaintiff.   

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