Regardless of one's personal stance on abortion, NO employer should EVER be allowed to fire someone for having one.
3rd Circuit: Woman Cannot Be Fired for Having Abortion
Shannon P. Duffy
06-03-2008
A woman who has an abortion cannot be fired for doing so because the federal Pregnancy Discrimination Act also protects the decision to terminate a pregnancy, the 3rd U.S. Circuit Court of Appeals has ruled in a case of first impression.
The decision by a unanimous three-judge panel in Doe v. CARS Protection Plus Inc. revives a suit brought by a woman who claims she opted to have an abortion after tests showed that her baby had severe deformities and that she was fired three days later -- the day she attended the funeral for the baby.
In the lower court, U.S. District Judge Maurice B. Cohill Jr. granted summary judgment for the defendant, finding that the plaintiff -- who is referred to in court papers only as "Jane Doe" -- failed to show that her firing was connected to her abortion decision.
The 3rd Circuit disagreed, finding that Doe's boss remarked that "she didn't want to take responsibility," and that Cohill erred in labeling it a "stray remark" because a jury could infer from that statement that Doe's abortion was a factor in the decision to fire her.
Cohill also found that Doe could not show that her employer's stated reason for firing her was a "pretext" for discrimination.
A lawyer for CARS contended that Doe had "abandoned" her job, because she failed to notify the company on a daily basis of her intention to take sick or vacation leave.
But Doe's lawyer, Gary M. Davis of Pittsburgh, insisted that his client's husband had telephoned on a Friday, the day of the abortion, he notified the company that his wife would be taking one more sick day and would use vacation time to take off the following week.
The 3rd Circuit sided with Davis, finding that Cohill erred by failing to recognize that there was a genuine factual dispute about the critical issue in the case concerning whether Doe's husband had notified the company of her intention to take sick leave and vacation.
But before the appellate court reached the merits of the case, its first task was to address a question of first impression -- whether a woman's decision to have an abortion is protected under Title VII, as amended by the Pregnancy Discrimination Act.
Writing for the court, Senior 3rd Circuit Judge Richard L. Nygaard found that the 3rd Circuit has never squarely addressed the question, but had hinted in the past that it would find abortion decisions are protected under Title VII.
In its 2006 decision in Curay-Cramer v. Ursuline Acad. of Wilmington, Nygaard said, the court rejected a Catholic school teacher's suit alleging she was fired for expressing her support of abortion rights in a newspaper ad that ran on the 30th anniversary of Roe v. Wade, holding that such a claim would force the courts to rule on the validity of a religious institution's beliefs.
In that suit, plaintiff Michele Curay-Cramer said she was fired from her post at a private preparatory school for girls because she was one of more than 600 people -- including Delaware Gov. Ruth Ann Minner -- who signed onto a Jan. 22, 2003, ad in the Wilmington News-Journal that said abortion rights were "under attack."
Nygaard found that although the 3rd Circuit rejected Curay-Cramer's claim that Title VII's "opposition clause" protects any employee who has an abortion or who supports the rights of women who do so, it had cited with "approval" a 1996 decision from the 6th Circuit that said employers "may not discriminate against a woman employee because she has exercised her right to have an abortion."
The Equal Employment Opportunity Commission has also taken the position that Title VII makes it unlawful to fire a woman because she has had an abortion, Nygaard noted, stating in its guidelines that the Pregnancy Discrimination Act covers "pregnancy, childbirth, or related medical conditions," and that abortion qualifies as a "related medical condition."
Likewise, Nygaard found that the legislative history of the Pregnancy Discrimination Act shows that Congress intended to make it illegal for an employer to "fire or refuse to hire a woman simply because she has exercised her right to have an abortion."
As a result, Nygaard found that "the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion."
In an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge James F. McClure Jr. of the Middle District of Pennsylvania, Nygaard wrote, "We now hold that the term 'related medical conditions' includes an abortion."
According to court papers, CARS is in the business of insuring used cars and hired Doe in 1999 as a graphic artist.
In the suit, Doe claims she learned in May 2000 that she was pregnant and that her boss, Fred Kohl, told her they would "play it by ear" when she asked about how to handle missing time from work for doctor's appointments.
In early August, the suit says, Doe's doctors identified problems in her pregnancy and insisted on an amniocentesis test.
Doe claims she notified the company of her need to be absent on several days for testing, and that when she learned of her baby's deformities and decided to terminate the pregnancy, her husband notified the company that she would be out for another week.
The suit says Doe's vacation request was approved but that she was fired on the third day of her vacation week on the grounds that she had failed to request the time off.
In dismissing the suit, Cohill found that Doe was unable to show that she was treated differently from any other worker because CARS had shown that it terminates workers who fail to give daily notice of time off.
The 3rd Circuit disagreed, saying Cohill's analysis of whether Doe had established a prima facie case of discrimination was flawed because he had failed to "acknowledge the 'uniqueness' of pregnancy discrimination cases and instead, incorrectly treated Doe's claims as if they were an ordinary case of gender discrimination."
Nygaard found that the key dispute centered on whether Doe was able to show "some nexus" between her pregnancy and her firing.
"Comparing Doe to other non-pregnant workers who were temporarily disabled, we conclude that Doe has provided sufficient evidence to satisfy the ... prima facie case," Nygaard wrote.
The evidence, Nygaard said, showed that other CARS employees were not held to a strict standard of giving daily notice during times of sickness.
"The district court found that Doe could not point to any evidence from which a reasonable jury could find similarly situated CARS employees were treated differently regarding calling off work because they were sick. That finding is not supported," Nygaard wrote.
Nygaard also found that Cohill erred in holding that Doe was unable to show any "discriminatory animus" toward her for having an abortion.
Cohill erred, Nygaard said, by rejecting Doe's evidence that her boss allegedly said Doe "didn't want to take responsibility," after another worker questioned "all this secrecy behind [her] losing her baby."
A jury, Nygaard said, "could infer that Kohl was referring to Doe's abortion" because his remark was made after a comment about "secrecy."
Although the precise meaning of the remark is unclear, Nygaard found that the jury could consider several possibilities.
"Kohl may have been referring to Doe's failure to take responsibility for her selection of an abortion procedure. Kohl may have been referring to Doe's failure to take responsibility for her own job termination. Kohl's commentary could also have been insinuating that Doe did something to cause the loss of her own baby. Or, Kohl could have been castigating Doe for not acknowledging the abortion because of an anti-abortion environment at CARS or Kohl's own personal beliefs about abortion," Nygaard wrote.
"What is clear is that this particular remark may raise a reasonable inference that the abortion was a factor in terminating Doe's employment. Such comments are surely the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, thus providing additional threads of evidence that are relevant to the jury," Nygaard wrote.
Davis declined to comment on the ruling, saying the litigation was under seal in the lower court and that he was not sure why the 3rd Circuit had opted to make the case public with its published opinion.
CARS was represented in the appeal by its in-house lawyer, Robert J. Waine. But Waine is no longer with the company, according to its new in-house attorney, Dean Collins, who declined to comment.
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