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Pregnancy Discrimination: "You're Pregnant? What Are We Going To Do About That?"

Obviously, this is not the best way to respond to someone's announcement that they are pregnant-whether they are your employee or just a friend. But, when you are the employer, it can lead to a little more than just hurt feelings. For example, a lawsuit.

In Majer v. Lexion Medical, LLC, the N.D. Ohio denied the employer's motion for summary judgment, finding that the employee submitted enough evidence on the issue of pretext to make it to trial. Pretext is the final step in the McDonnell-Douglas burden-shifting framework for discrimination cases. The full framework is comprised of three steps: (1) the prima facie case; (2) employer offers legitimate, non-discriminatory reason; and (3) employee proves pretext.

Under the Pregnancy Discrimination Act, which prohibits employers from discriminating "because of or on the basis of pregnancy, childbirth, or related medical conditions," the employee has to prove four elements to demonstrate the prima facie case.

1. She was pregnant;
2. She was qualified for her job;
3. She was subjected to an adverse employment decision; and
4. There is a nexus between her pregnancy and the adverse employment decision.

Cline v. Catholic Diocese of Toledo
, 206 F.3d 651, 658 (6th Cir. 2000). If the employee can make out the prima facie case, then the employer has an opportunity to give its "legitimate, non-discriminatory reason" for the adverse employment action. Finally, the employee has the opportunity to rebut this reason by showing that the real reason is her pregnancy, childbirth, or related medical condition.

In Majer, the issue focused on pretext. After making out her prima facie case, Lexion claimed Majer, a medical device sales representative, was fired for poor performance. Lexion even had documented Majer's underperformance of sales performance compared to sales goals. However, summary judgment was still denied, because the plaintiff-employee put forth enough evidence to demonstrate pretext.

Specifically, Majer put forth evidence that Lexion's true performance measures were different than what they used to justify her termination to the court, that other employees with worse performance had not been fired, and that her manager had a less-than-positive reaction to her pregnancy announcement. As the title suggests, Majer alleged her supervisor responded with, "What are we going to do about that?" and then mailed her birth control pills for good measure. Although the manager denied making the statement and mailing her the pills as a form of harassment, the evidence was viewed in a light most favorable to Majer.

What is most interesting about this case is that sales goals versus sales performance is an objective measure of performance. Yet, because of the circumstantial evidence the plaintiff-employee presented, it was not enough to avoid a trial on the merits. The lesson? There's more to proving or disproving discrimination than so-called "objective" measures of performance.

By: Chelsea Long

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