‘Maternity Leave’ Remark May Be Direct Proof of Bias

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By Patrick Dorrian

Sept. 6 — The EEOC can pursue its claim that Maryland health-care provider Dimensions Healthcare System failed to promote a female employee because she took leave to have a baby, a federal judge ruled ( EEOC v. Dimensions Healthcare Sys. , 2016 BL 288080, D. Md., No. 15-2342, 9/2/16 ).

The case demonstrates that comments made by employees in decision-making positions can potentially lead to direct liability for employers under federal job discrimination law. It highlights the need to train these employees not to voice or consider unlawful factors when making personnel moves.

A statement by Associate Vice President Judith Selvage to Cassandra Crawford explaining that a male candidate was promoted to manager rather than Crawford because he had a management background and Crawford had taken “maternity leave for a while” could be direct evidence of sex bias under Title VII of the 1964 Civil Rights Act, the U.S. District Court for the District of Maryland held Sept. 2.

Court Cites Timing of Remark

Judge Paula Xinis said Selvage was the decision maker responsible for filling the manager position in Dimensions’ Patient Financial Services Department. “What is more, Selvage’s explanation for Crawford not receiving the promotion came on the heels of Selvage’s decision, in close temporal proximity,” the judge wrote.

Other similar evidence could show that Selvage had a pattern of discriminating against women who took maternity leave, the court found. Selvage admitted during her deposition that she had waited to demote another employee until that person returned from maternity leave because she wouldn’t touch the worker “with a ten-foot pole” while she was pregnant, the court said.

Dimensions runs Bowie Health Center, Laurel Regional Hospital and Prince George’s Hospital Center, and it says it’s the largest provider of health-care services in Prince George’s County, Md.

“While we cannot comment on pending legal matters, it’s important to know that Dimensions Healthcare System is strongly committed to diversity and inclusiveness,” the company said in a statement provided to Bloomberg BNA Sept. 6.

Circumstantial Evidence Also Warrants Trial

The Equal Employment Opportunity Commission also may be able to establish its claim against Dimensions through the circumstantial method of proof, Xinis added.

She said a jury could find the health-care provider’s explanation that Terreze Jones—the male candidate who received the promotion—was the best fit for the job to be a cover for bias.

The judge cited evidence that Crawford had 23 years’ experience in the health-care industry, including seven with Dimensions, while Jones had just nine years of industry experience, only two of which were with the company. Jones also had been disciplined for attendance issues while Crawford had a record of favorable performance reviews, Xinis said.

In addition, Crawford’s and Jones’s supervisors both testified that they believed Crawford was the better candidate, the court said.

Moreover, Jones’s resume was amended to include mention of his “management experience” only after Selvage had cited it as a reason for giving the job to Jones rather than Crawford, the court said. Two prior versions of his resume made no such reference, it said.

Dimensions also departed from its regular “promotional chain” in selecting Jones over Crawford for the manager position, the court said. The usual course would have been to promote a team leader—the position Crawford held—rather than someone holding the lower-ranked position of insurance team specialist—Jones’s job before he was promoted. Instead, the company “inexplicably leapfrogged” Jones over Crawford, the court found.

The EEOC declined to comment on the ruling to Bloomberg BNA Sept. 6.

EEOC attorneys Amber Trzinski Fox, Debra M. Lawrence and Maria Salacuse in Baltimore represented the commission. Kraig B. Long of Miles & Stockbridge P.C. in Baltimore represented Dimensions.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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