Kentucky Employment Law Blog

Pregnancy Discrimination: Who Is Similarly-Situated?

A prima facie case of pregnancy discriminationhas four elements: (1) that the plaintiff was pregnant, (2) that the plaintiff was qualified for her job, (3) that the plaintiff was subjected to an adverse employment action; and, (4) that there is a nexus between her pregnancy and the adverse employment decision. One way the plaintiff can establish the causation nexus is by proof regarding "another employee who is similarly situated in her or his ability or inability to work [and] received more favorable benefits." But who is similarly situated? Is an employee with a work-related restriction similarly situated? This question the Sixth Circuit again answered in Latowski v. Northwood Nursing Center, No 12-2408 (December 23, 2013).

Jennifer Latowski was employed as a certified nursing assistant by Northwoods nursing center. She became pregnant and, as a result of her pregnancy, her doctor imposed a 50 pound lifting restriction. When Latowski's doctor did not rescind the lifting restriction, she was fired. She filed a wrongful termination suit claiming pregnancy discrimination. A federal district court granted summary judgment to the employer. The Sixth Circuit reversed.

The Sixth Circuit held that Latowski had presentedsufficient proof of a nexus between her pregnancy and her termination through proof "that Northwood treated other CNAs with similar lifting restrictions more favorably by assigning them to 'light duty.'"the court further observed that while "these employees differed from Latowski because their medical conditions were work-related, they were similarly situated in their ability to work because they were placed under lifting restrictions of up to 50 pounds." This followed the Sixth Circuit's earlier holding in Ensley-Gaines v. Runyon, 100 F3d 1220, 1226 (6th Cir 1996), where it held that "the Pregnancy Discrimination Act requires only that the employee be similar in his or her ability or inability to work."

This is an important distinction: it is a violation of the Pregnancy Discrimination Act for an employer to discriminate in its treatment of an employee with a work-related restriction (such as an employee was suffered a work injury) and a pregnant employee that has a similar restriction. As long as the two are similar in their ability or inability to work, they are similarly situated for proof purposes under the Pregnancy Discrimination Act.

The Sixth Circuit's decision in Latowski was also discussed in a previous post: Pregnancy Discrimination: Do Pregnancy-Related Restrictions Mean That the Employee Is No Longer Qualified for Job?

Robert L. Abell
www.RobertAbellLaw.com

 

 

Related articles

Pregnancy Discrimination Act: Protecting Mothers and Soon-to-be Mothers from Workplace Discrimination

An end to pregnancy discrimination is in everyone's interest

Widiss on the PDA and ADA Interplay

Hawaii resort retailer settles discrimination suit for $60K

Protecting Pregnant Employees through the Civil Rights Act

Pregnancy: Why isn't pregnancy just treated like pregnancy?

Pregnancy Discrimination Claims Proceed Against Latham

Pregnant and Looking for Work? Attack Stereotypes Head-On

Fired Latham Secretary Alleges Pregnancy Discrimination

Pregnancy Discrimination: Do Pregnancy-Related Restrictions Mean That The Employee Is No Longer Qualified For Her Job?

Jennifer Latowski, a Certified Nursing Assistant (CNA), was terminated after she told her employer, Northwoods nursing center, both that she was pregnant and that she had a 50 pound lifting restriction as a result. Management at the nursing home told Latowski that she could continue working only if her Dr. rescinded in writing the 50 pound lifting restriction; otherwise, Latowski would be deemed to have "resigned" her employment. Latowski's doctor did not alter her restrictions, and she was terminated.

After being fired, Latowski filed suit claiming pregnancy discrimination along with other claims.the district court granted a summary judgment to the employer finding, among other things, that Latowski could not present even a prima facie case of pregnancy discrimination, because she could not show she was "qualified" to do her job given her pregnancy-related lifting restriction. The Sixth Circuit reversed, Latowski v. Northwood Nursing Center, No 12- 2408 (December 23, 2013).

One of the elements of a prima facie case of pregnancy discrimination is that the employee was "qualified for her job." In Tysinger v. Police Dept. of Zanesville, 463 F2d 569 (6th Cir 2006), the Sixth Circuit ruled as to the qualifications element of the prima facie case as follows: "For purposes of the prima facie case analysis, a plaintiff's qualifications are to be assessed in terms of whether he or she was meeting the employer's expectations prior to and independent of the events that led to the adverse action." in other words, in assessing whether or not a plaintiff has presented a prima facie case of discrimination, the employee's ability to do her job – whether or not she was "qualified" – should be determined based on what she could and could not do prior to and independent from any pregnancy-related restrictions. So the district courtmade a basic error.

Robert L. Abell
www.RobertAbellLaw.com

Related articles

Pregnancy Discrimination Act: Protecting Mothers and Soon-to-be Mothers from Workplace Discrimination

Resort retailer to pay $60K pregnancy discrimination settlement

Pregnancy Discrimination Claims Proceed Against Latham

Pregnant and Looking for Work? Attack Stereotypes Head-On

Bills to halt pregnancy discrimination, credit report use in hiring clear Senate panel

Fired Latham Secretary Alleges Pregnancy Discrimination

Latham & Watkins Settles Pregnancy Discrimination Lawsuit

Does being pregnant cost women jobs?

An end to pregnancy discrimination is in everyone's interest

The Conduct of a Nondecisionmaker May Be Probative of Whether an Adverse Action Was Motivated by Discrimination

Anthony Rachells, despite having "received numerous sales awards, consistently exceeded company sales goals with the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers," was let go in a RIF following the acquisition of AT&T Wireless by Cingular Wireless. He claimed that he was terminated because of race discrimination. In support of this claim, Rachells sought to present evidence from two other Cingular employees who experience race discrimination in the course of their employment. The Sixth Circuit, in reversing a summary judgment, ruled once again that evidence of other discriminatory practices is relevant and admissible in support of a plaintiff's claim of individualized discrimination. Rachells v Cingular Wireless, No 12-4137 (October 17, 2013).

Rachells claimed that race discrimination was the reason he was terminated by Cingular Wireless in a RIF. He sought to introduce affidavits from two other Cingular employees regarding discriminatory practices they suffered. Cingular argued this evidence was not relevant because the two other employees "operated in a different business channel and generally had different co-workers and direct supervisors than did Rachells." The Sixth Circuit rejected this argument explaining as follows:

Indeed, "evidence of a ... discriminatory atmosphere is not rendered irrelevant by its failure to coincide precisely with the particular actors or timeframe involved in the specific events that generated a claim of discriminatory treatment." Thus, even the conduct of a nondecisionmaker may be probative of whether an adverse action directed at a plaintiff was racially motivated. Moreover, "management's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context." Factors affecting whether discriminatory atmosphere evidence is probative of discrimination in a particular case include: "the actor's position in the employer's hierarchy, the purpose and content of the conduct, and the temporal connection between the conduct and the challenge employment action, as well as whether the conduct buttresses other evidence of pretext."

One piece of this evidence were complaints by other African-American employees that their performance evaluations were tainted by race discrimination. There was no response to these "multiple complaints of discrimination," and the Sixth Circuit asserted that "this failure to investigate could be construed by a reasonable jury as willful and action and condemnation of such discriminatory conduct." Furthermore and significantly the Sixth Circuit observed that evidence regarding this nonresponse was "not rendered irrelevant simply because those events predated the RIF by a year and a half."

The Sixth Circuit's opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.

The Rachells case was discussed in two previous posts: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability" and Who Are Comparable Employees In A RIF Case?

Robert L. Abell
www.RobertAbellLaw.com

Related articles

Employee Training on Race Discrimination Is Expensive To Avoid!

Preventing Race and Color Discrimination in the Workplace

Who Are Comparable Employees In A RIF Case?

A prima facie case of discrimination in a RIF case has a modified fourth element: the plaintiffs must provide "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Geiger v. Tower Auto, 579 F3d 614, 622 (6th Cir 2009). One way to meet this proof requirement is to identify a group of comparable employees who were retained head of the plaintiff. The Sixth Circuit analyzed this issue in Rachells v. Cingular Wireless, No 12-4137 (October 17, 2013), a race discrimination case where summary judgment granted the employer was reversed.

Anthony Rachells work as a sales rep for Cingular Wireless and "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his Cingular peers." In October 2004, Cingular acquired AT&T Wireless. The acquisition left nine sales representatives in the merged company, five from AT&T and four from Cingular. A RIF required five of the sales reps be let go. Rachells, a top performer and the lone African-America among the group, was one and he filed suit claiming race discrimination following his termination.

Rachells argue that the comparative ors were limited to the for Cingular employees; Cingular contended that all nine must be considered. The Sixth Circuit agreed with Rachells, concluding as follows: "employees comparable to Rachells must have equivalent positions, be subject to the same decision-making processes, and subject to evaluation by the same decision-makers." Because the Cingular and the AT&T sales reps were subject to different performance review criteria and their performance reviews were conducted by different persons, the Sixth Circuit ruled that "the record does not support including the AT&T candidates in the peer group with which Rachells is to be compared."

The Sixth Circuit opinion was authored by District Judge Algenon Marbley joined by Circuit Judges Guy Cole and Bernice Donald.

The Sixth Circuit's decision in Rachells v Cingular Wireless was also discussed in a previous post: "It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated To Demonstrated Sales Ability," Sixth Circuit Observes In Reversing Summary Judgment. 

Robert L. Abell
www.RobertAbellLaw.com

"It Strains Credulity to Imagine That the Qualifications for a Sales Position ... Are Unrelated to Demonstrated Sales Ability," Sixth Circuit Observes in Reversing Summary Judgment

Anthony Rachells "received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003, earned the top performance review among his ... Cingular peers." The next year, 2004, Cingular acquired AT&T Wireless and decided to reduce its merged salesforce from 9 to 4. Rachells looked good to survive the RIF: he "exceeded his 2004 sales goals by a greater margin than in 2003." But it was not to be and Rachells, the lone African-American among the sales group, was terminated. Rachells suit for race discrimination arising from his discharge. In reversing the summary judgment granted by the district court, the Sixth Circuit expressed skepticism about Cingular's contentions that Rachells' demonstrated sales abilities were irrelevant to his continued employment: "it strains credulity to imagine that the qualifications for a sales position ... are unrelated to demonstrated sales ability." Rachells v. Cingular Wireless, No. 12-4137 (October 17, 2013).

Cingular's position seems almost absurd: claims to have engaged in a process to select the best four of nine salespeople but also claims that the candidates'"demonstrated sales ability" was irrelevant to the process. Most disturbingly, it succeeded in selling this counter-intuitive position to a credulous district court judge that granted it summary judgment.

District Judge Algenon Marbley wrote the opinion for the Sixth Circuit; he was joined by Circuit Judges Guy Cole and Bernice Donald.

Robert L. Abell
www.RobertAbellLaw.com

Related articles

Full Sixth Circuit grants en banc review in Blewett

The Sixth Circuit Wrestles With When to Pull the Trigger on the Unconscionability Doctrine in Arbitration Clauses.

As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

Sixth Circuit Affirms District Court, Rejects Attorney's Bid for Class-Wide Arbitration

Sixth Circuit reverses one-week jail sentence for CEO as substantively unreasonable

Google books case dismissed on fair use grounds