How Invalid Documentary Support for an Employer’s Adverse Action May Bolster Your New York Pregnancy Discrimination Case

Pregnancy is an exciting and joyous time for many families. Sometimes, though, it comes with complications at work for expecting moms. An employer may chafe at the pregnant worker’s new limitations or her need for more time away from work (for prenatal medical appointments or parental leave.) Some of these employers respond to this by trumping up reasons to punish (or even fire) the worker. When that happens, the employer’s actions may have violated the laws against pregnancy discrimination. If you endured pregnancy discrimination or have questions about pregnancy discrimination, be sure to act swiftly to contact a knowledgeable New York pregnancy discrimination lawyer to get the answers and advice you need.

Of course, very few employers are going to tell a pregnant worker, “I’m mad that you’re pregnant. You’re fired!” Rather, the evidence is often more subtle and/or indirect, as a pregnancy discrimination case from here in New York City shows.

The employee, S.W., was a receptionist for a Manhattan medical office. In the fall of 2018, the receptionist informed her supervisor that she was pregnant.

In November, the receptionist began inquiring about maternity leave. After she made these inquiries, the supervisor allegedly “began to articulate problems” with the receptionist’s performance. In one instance, the supervisor issued the receptionist a “first written warning” about her performance. That came exactly three days after the supervisor questioned the receptionist about the dates of her maternity leave and “whether she had applied for paid family leave.”

In late January 2019, the receptionist contacted the office’s executive administrator about Family and Medical Leave Act (FMLA) paperwork. Very shortly thereafter, the receptionist received a second written warning — this one accusing the receptionist of prescribing unauthorized MRIs.

The receptionist gave birth on February 19, 2019, and her maternity leave spanned from that date until the end of April. She returned to work on May 1. On May 6, the employer issued a final written warning and fired the receptionist.

The receptionist subsequently sued, alleging discrimination and retaliation. The employer moved for summary judgment, but the trial court ruled in favor of the worker and denied the motion.

The 4 Parts of a Federal Pregnancy Discrimination Case

When you pursue a discrimination case under federal law (Title VII,) you have to meet the test created by the Supreme Court‘s decision in McDonnell Douglas Corp. v. Green. That test contains three parts. First, the law places on you the burden to establish what’s called a “prima facie” case. That means demonstrating that:

  1. You are a member of a protected class.
  2. You were qualified for the position you held (or sought).
  3. You endured an adverse employment action, and
  4. The adverse action “occurred in circumstances giving rise to an inference of unlawful discrimination.”

In these cases, there are several protected classes, including religion, race/color, ethnicity/nationality, sex/gender, sexual orientation, gender identity, disability, age, pregnancy, and more. Valid types of adverse actions can range from termination to demotion to suspension to a reduction in hours to a reduction in pay to a failure to promote (among others.)

It’s important to note that the burden the courts impose regarding the prima facie requirement is relatively low. For one thing, you don’t have to show that the adverse action would not have happened but for your protected status; you need only show that your membership in the protected class was one of the motives driving the adverse action.

Closeness in terms of time (or what the law calls “temporal proximity”) can, by itself, be enough proof at this stage of the process. If have evidence that you encountered an adverse action shortly after your employer became aware of your pregnancy, that timeline alone may be sufficient to create an inference of discrimination.

This receptionist had proof of temporal proximity. Her allegations established that her supervisor issued a first written warning just three months after initially learning of her pregnancy and just three days after the supervisor made an additional inquiry regarding the parameters of the receptionist’s maternity leave.

Once you have established a prima facie case, the law shifts the burden to your employer. The employer must demonstrate that it had a legitimate, non-discriminatory reason for taking the adverse action(s) it took. Once the employer clears that hurdle, the burden shifts back to you. You then must show that the legitimate reason the employer gave was really just a pretext for engaging in illegal discrimination.

Proving ‘Pretext’ in a Discrimination Lawsuit

The law recognizes a variety of ways to meet this pretext requirement. One of the stronger options centers upon demonstrating “weaknesses, implausibilities, inconsistencies, or contradictions” in the non-discriminatory reasoning the employer provided to the court.

In many cases, this type of attack centers around showing inconsistencies or contradictions. An employer that can’t keep its story straight is one where you may have a strong argument about pretext. If, for example, your employer alleges that your supervisor provided you with numerous verbal warnings about your poor performance spanning many months before your demotion, but you present the court with evidence of an employment file containing nothing but positive performance reviews and devoid of any written warnings or other documentation of substandard performance, you have strong proof of a contradiction that demonstrates pretext.

In the receptionist’s case, she had evidence of a different sort, which highlights another avenue for advancing a strong argument of pretext. That proof centered on alleging that some of the written documentation that supported the employer’s non-discriminatory reasoning was bogus.

For example, the employer allegedly issued the receptionist a second written warning on Jan. 28, 2019, as a result of the receptionist’s prescribing unauthorized MRIs. In support of that action, the employer relied on seven MRI records. According to the receptionist, though, six of those seven weren’t hers and therefore couldn’t represent a legitimate reason for adverse action against her.

Of the six, the receptionist alleged that three were dated either during her maternity leave (Feb. 19 – April 30,) or after her termination on May 6. (Note that, if this was true, that would make the alleged “support” for the Jan. 28, 2019, disciplinary action things that occurred weeks or even months after Jan. 28, 2019.) Indeed, one of the three bore a date of April 2, 2020, 14 months after the employer issued the second written warning.

Two more records were on forms that the receptionist did not recognize and allegedly never used during her time at the office. A sixth was typewritten and the receptionist alleged that she never typed up any MRI forms while working for the employer.

As a result of this showing by the receptionist, the court concluded that she had established “genuine disputes of material facts,” which meant that the law did not entitle the employer to receive a summary judgment in its favor. The court also noted that, because the receptionist had met her burden in demonstrating a federal law case under Title VII, she necessarily met the requirements of the New York City Human Rights Law, as the city’s standards “are much more liberally construed” than those of Title VII.

If you’ve encountered any of the many forms that workplace pregnancy discrimination may take, you owe it to yourself to get in touch with the experienced New York pregnancy discrimination attorneys at Phillips & Associates. Our team of New York lawyers has spent many years fighting for the rights of pregnant New York workers, and we are eager to discuss your situation with you. Contact us online or at (866) 229-9441 to set up a free and confidential consultation today.

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