Dive Brief:

• A jury should decide whether an employee was fired for violating a company policy or because she was pregnant, the 10th U.S. Circuit Court of Appeals has determined (Fassbender v. Correct Care Solutions, No. 17-3054 (10th Cir. May 15, 2018)).
• Alena Fassbender, a medication aide, sued Correct Care Solutions LLC, a nationwide healthcare services company that contracts with jails to provide care for inmates, alleging pregnancy discrimination. Fassbender said she was terminated because there were several pregnant workers in her group. When an administrator overheard Fassbender say she was pregnant, the administrator allegedly said, “What, you’re pregnant too?” Fassbender testified that a few days later, when the same administrator heard that another worker was pregnant, she said, “I don’t know how I’m going to be able to handle all of these people being pregnant at once.” Another medication aide said she overheard the administrator say, “I have too many pregnant workers. I don’t know what I’m going to do with all of them.” CCS, however, said it terminated Fassbender because she violated the company’s “no fraternization” policy by not immediately following company protocol when she received a note from an inmate indicating romantic interest.
• A district court granted summary judgment for the employer, but the 10th Circuit said it found "sufficient suspicion surrounding Fassbender’s termination to send this case to a jury." The company’s reason for firing Fassbender kept changing and the administrator was told not to make similar statements in the future, it noted. The court also discounted the administrator’s hiring of a pregnant employee less than four months after Fassbender was fired, observing that a jury could reasonably question the motivation behind that action.

Dive Insight:

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act's sex discrimination prohibitions to forbid an employer from taking adverse employment actions against an employee because of pregnancy, and many state and local laws have requirements that go above and beyond federal law.

The allegations in Fassbender illustrate why training, especially for front-line managers, has long been considered an important aspect of preventing discrimination and retaliation. Experts regularly cite front-line managers as a major cause of federal nondiscrimination law violations, and training can help ensure that supervisor missteps — from comments to retaliation — don't give rise to such claims.

Experts predict that sex discrimination claims will only increase in the wake of #MeToo, so employers may want to consider training for managers to ensure that sex discrimination, in all its forms, doesn't factor into employment decisions.