One of the most frustrating aspects for any employer defending a claim of employment discrimination is that you’re stuck with the cards dealt to you. That is to say, you employers and their lawyers can’t pick the facts. And sometimes no matter what legal defenses you think your company has when it comes to defending a discrimination claim, those facts will intervene, often stubbornly so.
Take for example, a 2012 pregnancy discrimination claim (Chapter 7 Trustee v Gate Gormet, Inc. (PDF)) where the employer was dealt the equivalent of a royal flush of bad facts in terms of defending the pregnancy discrimination claim.
In terms of a pregnancy discrimination claim, as amended by the Pregnancy Discrimination Act, Title VII prohibits employers from discriminating against employees because of pregnancy. 42 U.S.C. § 2000e-2(a)(1)-(2) (prohibiting discrimination “because of . . . sex”); id. § 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy . . . .”).
Against the backdrop of this statute, consider the following undisputed facts that were presented in the pregnancy discrimination claim against the employer:
- First, the human resource director testified in her deposition that pregnancy was a “substantial or motivating factor” in a manager’s decision to fire the plaintiff.
- Second, the manager who terminated the pregnant employee was reprimanded for violating the employer’s anti-discrimination policy.
- Third, and if there was any doubt about the two preceding points, the employer noted in writing in the manager’s reprimand that by telling the plaintiff she was fired because of her pregnancy-related medical restrictions the manager not only violated the anti-discrimination policy but he had also acted in a way that constituted discrimination in violation of Title VII.
It is not noted in the court record, but based on common courtesy and good manners I hope the plaintiff’s employment attorney sent a thank you card to the company for the testimonial gifts.
What can employers take away from cases like this?
First, supervisor training must be an ongoing process and not a one time event. While the facts are not clear in the above case as to whether the particular supervisor training underwent any sort of discrimination training, it is clear that the supervisor did not follow the employer’s policy as it relates to discrimination. But for this failure, the employer would have likely been able to avoid a costly legal defense and subsequent damages.
Second, a company’s managers and supervisors need to assume that everything will end up on the front page of their local paper. While this may be an overused cliche, it is accurate to assume that anything that makes an employer look bad in relation to a discrimination claim will make the top of a plaintiff’s exhibit list to be used at trial. For this reason, employers and management will often benefit from having a second set of eyes that belong to an attorney looking at any correspondence, reprimands, file memorandum, etc. that relate to an employment decision that may relate to prospective litigation.
Third, one of the most critical and valuable services employers should expect from their legal counsel is a thorough, even brutally honest, assessment of the good, the bad, and the ugly when it comes to the facts and claims involved in discrimination lawsuit. Such an assessment should drive the defense strategy, which may need to shift to conserving legal costs in what is shaping up to be a lost cause and turn to settlement strategy.
Fourth and building on the preceding point, bad facts do not always mean a defense of an employment discrimination claim should be abandoned. As an attorney, I’ve had absolutely horrendous facts in defending a claim, but was able to prevail on the legal-side of the equation. However, by recognizing this and getting the client to agree, we were able to save the client legal fees by foregoing “scorched earth” litigation related activity (i.e., discovery and depositions) that were not likely to produce information to overcome the bad facts involved in the case.
For more information about pregnancy discrimination or employment discrimination in general, contact Jason Shinn, who focuses on Michigan employment law and federal employment legal issues. This focus includes collaborating with employers in preventative counseling and investigating employee misconduct.