Worker With Baby Under Four Months Still Protected Under Pregnancy Bias Law

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By Patrick Dorrian  

July 9 — An employee at a Thomas Pink clothing store in Manhattan can pursue claims that she was denied promotion to manager based on her “recent pregnancy,” a federal judge ruled July 8.

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said. It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination.

He said although women who are pregnant, who very recently were pregnant, or who are on maternity leave are clearly covered by Title VII, as amended by the Pregnancy Discrimination Act, the point at which a new mother loses the law's protections is unclear and must be determined on a case-by-case basis.

“While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth” as the coverage cutoff point, the court said.

‘Sham' Interview Alleged

According to her second amended complaint,Albin was denied promotion following a “sham” interview process orchestrated by defendants Sonia Proulx, the director of Thomas Pink's U.S. stores, and Suzanne Humbert, the company's U.S. president.

Albin had expressed interest in the managerial opening at the company's Columbus Circle store shortly after returning to work from maternity leave in November 2011 following the August 2011 birth of her first child.

Although such openings typically were filled before the outgoing manager left to allow for overlap with the new manager, Albin alleges that the defendants delayed her initial interview with human resources until after the outgoing manager's employment had ended.

That delay forced Albin to act as interim store manager beginning Dec. 28, 2011, and Humbert later visited the store to interview another candidate without interviewing Albin. Two hours after Albin subsequently asked Proulx about the status of her application, she was scheduled for an interview with Humbert.

But according to Albin, Humbert showed up unprepared for their March 1, 2012, interview, which indicated that the decision already had been made to hire the other candidate. Further evidence of the sham nature of her interview came six days later, Albin alleged, when a paycheck for the new manager arrived at the store. The check couldn't have been processed so quickly unless the new manager had been entered into the payroll system weeks before, according to Albin.

The new manager allegedly had less relevant experience than Albin, but was “of an age at which she was unlikely to become pregnant,” Oetken wrote.

Title VII Protection Plausible

Albin sued, alleging violation of Title VII, the New York State Human Rights Law and the New York City Human Rights Law. The defendants moved to dismiss for failure to state a claim.

Oetken, however, found that Albin alleged facts making it plausible she was still protected from pregnancy discrimination at the time the relevant decision was made.

“If the discrimination originated from Plaintiff's initial email expressing interest in the managerial position, then the discriminatory act in question occurred just three and a half months after she gave birth,” the judge found. As a result, Oetken said it's necessary to determine whether that day, the date the other candidate was hired, or when Albin received notice of her rejection is the proper measuring date.

Under Albin's allegations and emerging circuit case law, the judge said, there would be “sufficiently close temporal proximity” between her pregnancy and promotion denial for her to be in the protected class.

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Albin_v_LVMH_Moet_Hennessy_Louis_Vuitton_Inc_et_al_2014_BL_188352.