Atlanta Employment Lawyer Blog

Pregnancy discrimination occurs when expectant women are fired, not hired or otherwise discriminated against as a result of their pregnancy or their desire to become pregnant. In a recent case, a social worker whose job was eliminated but was not allowed to be considered for another job was allowed to proceed with her claims against her former employer.

In Ferdinand-Davenport v. Children’s Guild, a woman – Na’imah Ferdinand-Davenport - worked as a clinician/social worked at The Children’s Guild (TCG). Two days after receiving a promotion, Ferdinand-Davenport announced she was pregnant. Five months later, she was told her job might be eliminated. At the same time, other employees were notified that their positions were in jeopardy but were told of alternative job opportunities not disclosed to Ferdinand-Davenport.

Although the employer alleged that the employee failed to plead sufficient facts, the court disagreed, noting that once Ferdinand-Davenport was aware of the open positions, she attempted to apply for the jobs but TCG failed to return her phone calls or provide her the applicable information so her efforts at applying were unsuccessful. The court explained, “the employer does not escape responsibility for discriminatory failure to hire by making the application process so onerous for a candidate within a protected class that he or she is denied the opportunity to apply at all.”

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It seems as if the courts are giving birth to a number of important pregnancy discrimination act cases these days. In our last post, we wrote about a case from the Third Circuit Court of Appeals, in which the court held that a female employee who was fired shortly after having an abortion can assert a claim for sex discrimination under the Pregnancy Discrimination Act. In today’s post, we discuss a case from the Seventh Circuit Court of Appeals, Hall v. Nalco Co., in which the court held that an infertile female employee who was discharged as a result of taking leaves of absence to undergo infertility treatments can state a claim under the Pregnancy Discrimination Act (PDA).

In Hall, the plaintiff, a female employee who suffered from infertility, requested time off from work to undergo in vitro fertilization (IVF). The company gave her a month-long leave of absence to have the IVF. Several months after she returned from her leave, she requested an additional leave to undergo another IVF because the first procedure had been unsuccessful. Just after she requested her leave, the company, which was in the process of a reorganization, advised the plaintiff that that she was going to be laid off in connection with the reorganization. Although the company did not tell the plaintiff the specific reason for her discharge, the evidence later revealed that the decision to select her for termination was due to her excessive absenteeism related to her “infertility treatments.”

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In a case of first impression from the Third Circuit Court of Appeals, Doe v. C.A.R.S. Protection Plus, Inc., the court held that a female employee who was fired less than a week after having an abortion has a claim for discrimination under the Pregnancy Discrimination Act.

Plaintiff worked as a graphic designer for a used car insurer. About a year after she was hired, she learned she was pregnant and told her supervisor, who was also a part-owner of the company. Due to some problems with her pregnancy, she requested time off to take some medical tests, which the company approved. Eventually, plaintiff was advised by her physician that her fetus had severe deformities, and he recommended that she terminate her pregnancy. Plaintiff contended that her husband called the company, advised it that she would be terminating her pregnancy and requested a one week vacation for her to have the procedure. Although plaintiff contended her vacation request was approved, she was discharged less than a week after she had the procedure.

In response, plaintiff filed a gender discrimination case under the Pregnancy Discrimination Act (PDA), alleging that she was discharged because of her abortion, which, she argued, constituted pregnancy discrimination under the PDA.

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