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EmploymentEmployment Discrimination


By March 27, 2012No Comments

Pregnancy discrimination involves the disparate (different) treatment of a female applicant or employee because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The federal Pregnancy Discrimination Act (“PDA”) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

The legislature has made it clear that public policy mandates protections for this vulnerable population. Both state and federal law protect employees from pregnancy discrimination under the rubric of gender (sex) discrimination and disability (handicap) discrimination. The Massachusetts anti-discrimination statute, M.G.L. c.151B, makes it unlawful for an employer to discriminate against any employees for the reasons of pregnancy. Likewise, Title VII under Federal law prohibits the aforementioned conduct by an employer or their agent towards a protected employee. Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 544 (1995); The Massachusetts Maternity Leave Act (MMLA) ; and the Federal Family Medical Leave Act (FMLA) also afford protections to employees requiring leave as a result of the birth or adoption of a child.

The MCAD issued a recent decision that is illustrative of the elements of proof expected in a pregnancy discrimination action. In MCAD, et al. v. Florence Pizza Factory Corp., et al., the Massachusetts Commission Against Discrimination (the “MCAD”) found in favor of an employee of Florence Pizza Factory Corp. based upon her claim of pregnancy discrimination. The MCAD awarded the pregnant employee back pay, plus $20,000.00 for emotional distress.

In the Florence Pizza Factory case, the MCAD found that the employee established sufficient evidence to state a claim of pregnancy discrimination by demonstrating that upon notifying her manager of her pregnancy, her manager “made comments about her size, expressed concern about her ability to perform her job, reduced her hours and terminated her employment while she was pregnant.” These facts provide guidance as to what evidence an employee may use to prove a claim of pregnancy discrimination.

Although the MCAD considered evidence as to the Florence Pizza Factory’s rationale for the termination, namely that the restaurant experienced declining business and that Complainant’s performance was substandard, the MCAD was not persuaded that the employee performed poorly or that the restaurant’s sales had, in fact, decreased. Accordingly, the MCAD found no legitimate, non-discriminatory reasons for the employee’s termination. The MCAD further opined that “[t]he evidence supports Complainant’s contention that Respondents’ articulated reasons were pretext for discrimination and that she was terminated because of her pregnancy.” As is often the case, it appears that witness credibility and supporting documentation underlying the termination were key factors in this decision.

The Florence Pizza Factory decision illustrates that the MCAD will examine both the way a Complainant is treated at work and the employer’s explanation for its employment actions by looking beyond mere assertions. Here, the MCAD “peeled the onion” and found that the employee’s supervisor made comments that revealed his negative stereotypes about pregnant women in the workplace, and that the employer’s stated reason for terminating the employee—that business was decreasing and the employee’s performance was lagging—was not supported by the evidence.

The Florence Pizza Factory decision highlights the importance for employers to properly train supervisors, as well as generate contemporaneous and accurate documentation of employee performance. For employee advocates, the case highlights the importance of looking beyond the stated reasons for disciplinary action and carefully analyzing business and sales data when employed as a basis for termination.

Bennett & Belfort P.C. will continue to update this blog with future developments in this evolving area of discrimination law.