Death, Taxes and Pregnancies

August 19, 2013

Ben Franklin said there are only two things that are certain in life: death and taxes. However, without children, there would be no one to pay taxes or die (and then pay death taxes), meaning Franklin inadver­tently skipped one certainty—pregnancy.

The U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Wiscon­sin employers) recently examined a preg­nancy discrimination claim filed against Angel Corps, Inc. The court concluded that the employee presented enough evidence of discrimination to allow her claim to proceed to a jury trial. Significantly, Angel Corps provided shifting and inconsistent reasons for its discharge decision.

Bizarre Facts

Angel Corps is a nonmedical homecare agency that provides per­sonal care services for its clients. The company hired Jennifer Hitchcock as a client services supervisor. In that role, Hitchcock was required to perform new client admissions and assess the needs of new clients to determine which ser­vices Angel Corps should provide.

Hitchcock learned she was preg­nant and told her supervisor. The super­visor asked whether she planned to quit after giving birth. Hitchcock responded that she wasn’t certain and that she would give a minimum of 30 days’ no­tice if she decided to quit. Afterward, the supervisor significantly increased Hitchcock’s workload, including giving her tasks that she was not previously re­quired to perform. Hitchcock’s supervi­sor also began scrutinizing her work on a weekly basis.

The Alfred Hitchcock-type event that led to Hitchcock’s discharge in­volved her assessment of a 100-year-old woman who lived with her son. Hitch­cock went to the son’s home to assess the woman’s needs, but the son refused any medical assistance, including allowing doctors to come into his home. Hitch­cock asked to see the woman, which the son reluctantly allowed, but only from a distance. Hitchcock was unable to see any signs of breathing or volitional movement from the woman, so she left the home and immediately reported the matter to her supervisor. An ambulance responded, and it was determined that the woman had been dead for two to three days.

Angel Corps fired Hitchcock. The company gave several reasons for the discharge decision, including that Hitchcock had compromised the health and safety of a client. Hitchcock sued Angel Corps, claiming she was fired because she was pregnant in violation of the Pregnancy Discrimination Act (PDA). The trial court dismissed the lawsuit, and Hitchcock appealed to the 7th Circuit.

7th Circuit’s Decision

The 7th Circuit noted that Angel Corps gave at least four different explanations for Hitchcock’s discharge. One explana­tion was that Hitchcock had compromised the health and safety of a client. That made no sense to the court because the client had been dead for two to three days before Hitchcock arrived at the house.

The 7th Circuit noted that a jury can consider shift­ing and inconsistent explanations for a termination deci­sion in determining whether the real reason for a termi­nation was discriminatory. The 7th Circuit reversed the dismissal of Hitchcock’s lawsuit and sent the case back to the trial court, meaning Hitchcock will get to present her pregnancy discrimination claim to a jury. Hitchcock v. Angel Corps, Inc., Case No. 12-3515 (7th Cir., June 11, 2013).

Protections for Pregnancy, Maternity and Childbirth

The PDA prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. Both the PDA and the Wisconsin Fair Employment Act (WFEA) prohibit a variety of practices that consti­tute discrimination based on pregnancy or childbirth, including refusing to hire an individual because she is pregnant or because she plans to have children.

Generally, employers cannot force a pregnant em­ployee to go on leave as long as she is able to perform her job, and a woman who is unable to work because of pregnancy-related reasons is entitled to disability ben­efits or sick leave on the same basis as employees who cannot work for other medical reasons. Also, you may not limit disability benefits for pregnancy-related medi­cal conditions to married employees. Finally, you cannot have rules that prohibit employees from returning to work for a predetermined length of time after childbirth.

Bottom Line

Employment decisions regarding employees who are pregnant or have recently returned from maternity leave can be tricky. In this case, the employer opened it­self up to a trial by claiming Hitchcock endangered the health of a deceased client.

There are a variety of other pregnancy- and child­birth-related situations that may arise in the workplace, including handling various benefits for pregnant em­ployees. The federal Family and Medical Leave Act (FMLA) and the Wisconsin Family and Medical Leave Act (WFMLA) will come into play if you have 50 or more employees. You should check with legal counsel if you have specific benefits questions.

This article was featured in the August 2013 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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