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Early last month, a federal district court in Florida held employment discrimination based on having or not having an abortion might lead to a recognizable claim of sex discrimination under Title VII.  While the law is certainly not settled on this issue, we can see a certain trend emerging.

An established employee of Florida Central Credit Union (FCCU) requested a transfer to a different branch for convenience.  The day after she began at the new Clearwater, Florida branch where she requested to work, she found out she was pregnant and immediately told her supervisor.  She scheduled a medical procedure to terminate the pregnancy nine days later, and her supervisor approved the time off.  The employee took off the entire day to have the procedure and recover afterwards.  Two weeks into her employment at the Clearwater branch, she underwent a performance review.  Her review “went well” according to the employee’s complaint however she was subsequently terminated for her absence from work on the day of the abortion. The branch manager advised the employee the medical procedure she had was not an appropriate excuse for the absence during her probationary period.

The employee filed a charge with the EEOC for “wrongful termination.”  She subsequently filed suit under Title VII, as amended by the Pregnancy Discrimination Act (PDA).  FCCU filed a Motion to Dismiss, arguing the employee did not exhaust her administrative remedies because she claimed “wrongful termination”, not sex or pregnancy discrimination.  The court rejected this argument, finding the employee pled enough facts to allege a cause of action for sex discrimination under Title VIII.  According to the Court, “[h]er allegations, although not the model of clarity, permit the Court to sufficiently draw the inference that FCCU terminated her because of her choice to have an abortion, which may be a basis for sex discrimination.”

According to EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, Title VII – as amended by the PDA – protects women from discharge for having an abortion or contemplating having an abortion.  Title VII similarly prohibits adverse employment actions against an employee based on her decision not to have an abortion.

Employers, you should understand, and make sure your supervisors understand, sex discrimination can include a plethora of other issues that might not be at the forefront of your mind.  Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action.  “Related medical condition” is open to broad interpretations.  The EEOC suggests related medical conditions include: lactation; back pain; disorders such as preeclampsia (aka pregnancy-induced high blood pressure) and gestational diabetes; complications requiring bed rest; and the after-effects of a delivery.  We can now see a trend towards adding abortion procedures to this ever-growing list.

At least two appellate courts have reached similar conclusions. In Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008), cert. denied, 129 S. Ct. 576 (2008), the court held an employer was prohibited under the PDA from discriminating against an employee because she exercised her right to have an abortion.  In Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir. 1996), the court found the termination of a pregnant employee because she contemplated having abortion was in violation of the PDA.  This progressive trend is likely to continue as more and more courts get the chance to weigh in on this issue.  Take the time to make sure you and your supervisors are informed before you’re inevitably faced with an issue you’re not prepared to handle.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.