“You claimed my termination was to eliminate my job, but you go ahead and hire a replacement for me,” said Judy Allen. “It seems to be that I was fired because I’m pregnant.”
“Your job was eliminated,” replied HR Director Chad Mitchell. “The new employee is doing different work. I assure you we did not consider your pregnancy in the decision.”
Did the employer discriminate? The former employee has a triable discrimination claim. The company’s change in job title does not preclude a finding it replaced the former employee with a non-pregnant worker. The former employee also provided evidence that she was deliberately excluded from participation in a May 2010 buying trip, that the company demoted a fellow pregnant employee, and her supervisor made a “pregnant girls” comment which could permit a reasonable jury to suspect that the company was mitigated by pregnancy discrimination, the court said.
Contrary to the company’s assertions, a reasonable jury could find the former employee’s performance evaluations were positive, she had strong past sales performances, and her retail store relationships were positive. Before terminating any employee, an employer should carefully investigate any alleged misconduct and apply progressive discipline, if possible. Pregnancy bias is illegal and when biased comments are made by a supervisor, vicarious liability can occur. The key is for an employer to have a nondiscriminatory disciplinary policy in place and to follow it consistently.
