Why Timing Is Almost Everything in Pregnancy Discrimination CasesPregnancy Discrimination
Discrimination cases are based on allegations that some negative action by an employer was motivated by an illegal, discriminatory bias against the worker because of some protected basis (sex, race, color, etc.). In cases where the protected basis is something the person is not born with (such as a disability due to an accident or recent diagnosis, a complaint of discrimination, or pregnancy), a key piece of evidence is how long it took the decision maker to take the negative action after learning of the protected basis.
The longer it takes for an employer to make the decision, the less likely it would appear that the protected basis is the reason for the decision. So, for example, if a company fires a woman whose pregnancy ended 18 months before her last day at work, it wouldn’t appear that the pregnancy motivated the firing. If the firing takes place 11 days after the employer is told of the pregnancy, that makes the decision more suspicious, especially if there appears to be no valid reason for the firing.
How the Timing of Termination Led to a Pregnancy Discrimination Lawsuit
Plaintiff Cynthia Terrana claims she lost her job 11 days after she told her boss she was pregnant. She sued her former employer in state court in New York for violating state and city laws making sex, pregnancy, and disability discrimination illegal. She filed her complaint on March 6. The ex-employer, global financial services company Cantor Fitzgerald, has not yet filed its answer.
In the complaint, Terrana alleges the following facts:
- She was employed by Cantor Fitzgerald for more than six years before her layoff. She was hired as a project manager in 2006 and subsequently received a raise. She served multiple bosses “diligently and professionally” and earned the praise of those bosses, superiors, and co-workers.
- In 2012, Ron Wexler, Chief Operating Officer of Equities, became her boss.
- In February 2013, Terrana was informed by her physician that she was pregnant with her first child.
- After that appointment, she went to work and was “excited about the fantastic news.” To keep her employer informed about her medical condition and status, she met with Wexler and told him that she was six weeks pregnant.
- She alleged Wexler was less than excited about the news. He reportedly replied, “That’s what I figured,” and added, “Don’t get too excited. Most women miscarry with their first child.”
- Terrana left the meeting “saddened and dismayed at the coldness of his reply.” Wexler then allegedly stopped speaking to Terrana, physically avoided her, and told other employees, including Cantor Fitzgerald’s Head of Equities, Jared Kessler, that she was pregnant.
- Kessler later asked one of Terrana’s co-workers, “What do you think of Cynthia? Do you think she’s doing a good job?” Terrana claims this was the first time anyone asked such a question about her work performance.
- That same day, Terrana was told that her employment was terminated because her position was being eliminated.
- Fellow employees expressed shock and dismay over her termination.
- Terrana was replaced by an employee who was not pregnant or who was not known to be pregnant.
- Eleven days after she lost her job—22 days after her conversation with Wexler—Terrana suffered a miscarriage and lost her child.
Terrana is seeking $7 million in damages.
How Terrana Can Establish Her Claim
Terrana has the burden of showing that the facts of her case make it more likely than not that her employer’s action was based on illegal discrimination. She can do so by presenting direct evidence, such as the company admitting to the allegations. Alternatively, Terrana could claim that Wexler’s words directly show a bias against pregnant employees. Terrana can also offer comparative evidence demonstrating that non-pregnant employees in a similar situation were not laid off. Or she can offer circumstantial evidence, which might consist of the following:
- a deviation from normal practices or policies when it came to the layoff,
- a change in behavior (such as Wexler not speaking to and avoiding Terrana),
- statistics showing an inordinately high rate of pregnant employees losing their jobs,
- evidence showing the reason given for the termination (layoff) is untrue (if there were enough work for Terrana to do or a non-pregnant employee replaced her), or
- a short period of time between the company learning of Terrana’s pregnancy and her layoff (11 days).
Because pregnancy is a temporary condition, if the employer starts treating an employee differently shortly after learning of the pregnancy, it could lead to an inference of discrimination.
Does This Sound Familiar?
If you believe that you’ve suffered a setback at work because of your pregnancy (such as a demotion, layoff, or termination), contact our office so we can talk about what happened, the applicable laws, and your potential legal options.