Employer Not Liable Under Title VII for Retaliation Against Former Employee
The Pregnancy Discrimination Act (the "PDA"), enacted in 1978, provides that discrimination against an employee because of "pregnancy, childbirth, or related medical conditions" constitutes prohibited discrimination because of sex under Title VII of the Civil Rights Act of 1964. Employers, therefore, are properly cautious in considering disciplinary action involving an employee who is or was recently pregnant. However, employers should also be aware that, under the PDA, an employee's pregnancy does not insulate her from discipline for failure to conform to the employer's usual standards of performance and attendance. A recent decision of the United States Court of Appeals for the Eleventh Circuit illustrates that point, holding that an employer did not violate the PDA by violating an employee for poor attendance caused by pregnancy-related illnesses. Armindo v. Padlocker, Inc., 209 F.3d 1319 (11th Cir. 2000).
The employee, Carine Armindo, was absent from her clerical job at Padlocker, Inc., a manufacturer of packaging equipment, at least six days during her three months of employment in 1996. Five absences were related to her pregnancy, and she also arrived late or left early on other occasions because of her condition. Padlocker fired her in July 1996, and Armindo brought suit in federal court, claiming that she was discriminated against on the basis of her pregnancy.
The trial court granted summary judgment to the employer, finding that Armindo failed to show that Padlocker's asserted reason for firing her – her poor attendance – was a pretext for pregnancy discrimination.
The Eleventh Circuit affirmed, concluding that the PDA "is not violated by an employer who fires an employee for excessive absences, even if those absences were the result of a pregnancy, unless the employer overlooks the comparable absences of non-pregnant employees." The court explained that under the PDA, "'women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes... as other persons not so affected but similar in the ability or inability to work.'" The court further noted that the analysis for PDA claims is the same as for other sex discrimination claims under Title VII.
The court found that Armindo adduced no evidence that she was treated differently from similarly situated nonpregnant employees who had comparable absences. While the court observed that a plaintiff need not identify specific nonpregnant employees who were treated more favorably if the employer violated its own absenteeism/leave policies in firing her, there was no evidence that Padlocker violated its policy with respect to Armindo. In fact, Padlocker's employee manual did not provide any sick days until an employee completed a three-month probationary period, and Armindo was still on probation when she missed work.
Absent proof that Armindo was treated differently than nonpregnant employees, the narrow question at issue was whether Padlocker nevertheless violated the PDA to the extent that "its decision to fire Armindo was based upon absences and other missed work that were the result of her pregnancy." The court announced that the "clear answer is that the PDA does not require favorable treatment in this respect." While the PDA requires the employer to ignore the pregnancy, the employer need not ignore the absences, unless it also ignores the absences of nonpregnant employees.
Significantly, Armindo's claim was based entirely on the PDA, and she did not seek to excuse her absences under the Family Medical Leave Act ("FMLA"); Armindo had been employed by Padlocker for only three months and therefore was not an "eligible employee" under the FMLA, which covers employees who have been employed for at least one year. Unlike the PDA, the FMLA does require employers to hold open the jobs of covered employees who are absent from work (for up to twelve weeks per year) because of pregnancy, regardless of how the employer treats the absences of nonpregnant employees.