Fired Pregnant Worker Ruling Muddies Bias Issue

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By Patrick Dorrian

Does an employer violate a job applicant’s rights by rescinding a job offer after learning she’s pregnant and will want more maternity leave than the employer allows and is obligated to provide?

Not under Minnesota law, according to the state’s top court. That is, not unless the worker shows that the company’s concern with her failure to disclose the pregnancy during her job interview “actually motivated” the pulling of her offer, rather than its concern about the length of pregnancy-related leave she might seek, the court said in LaPoint v. Family Orthodontics, P.A. , 2017 BL 111385, Minn., No. A15-0396, 4/5/17 .

The case involves the friction between an applicant’s right under the Minnesota Human Rights Act not to disclose her expected need for maternity leave at the interview stage and a small-business owner’s concern with having its operation disrupted by a significant loss of worker production.

The outcome in the case probably would have been different had the employer been large enough to be covered by the federal Family and Medical Leave Act or Minnesota parental leave law, management-side lawyer William L. Davidson told Bloomberg BNA.

“Bigger companies are better able to handle lengthy leaves,” said Davidson, a shareholder in Lind, Jensen, Sullivan & Peterson P.A. in Minneapolis.

Neither law applied here because of the size of Nicole LaPoint’s prospective employer, St. Louis Park, Minn.-based Family Orthodontics P.A., he said.

A company must have at least 50 employees within or near the location where someone works before the FMLA is triggered. State law only applies to companies with 21 to 49 employees.

‘Strange Construction of the Law’

The majority opinion by the Minnesota Supreme Court was the product of “a strange construction of the law,” plaintiff-side attorney Leslie Lienemann said.

If the MHRA makes it illegal for an employer to request information on a protected characteristic such as pregnancy during the hiring process, she asked, how can an employer’s later action against a worker for failing to disclose her pregnancy until after she’s received and accepted a job offer not violate the law?

In reaching its decision, the majority jumbled the state’s motivating-factor standard for proving job discrimination and “muddied the road a little bit” for plaintiffs, said Lienemann, a partner in St-Paul, Minn.-based Culberth & Lienemann. “That’s where the litigation will be now” in mixed-motive cases under the MHRA, meaning employers will try to use what may be a new, heightened test to have cases dismissed prior to trial, she said.

“I don’t think the court meant to change” the plaintiff’s burden and “I will argue that the standard stays the same” given that the justices cited state law precedent clearly setting a lesser test, Lienemann said.

Neither Lienemann nor Davidson represented the parties in the case. But both appeared as friends of the court: Lienemann represented the Employee Lawyers Association of the Upper Midwest; Davidson represented the Minnesota Defense Lawyers Association.

Nonpregnant Ex-Intern Got Job

LaPoint was hired as an orthodontic assistant by Family Orthodontics after interviewing with clinic owner Dr. Angela Ross on March 22, 2013. Ross’s job offer to LaPoint and LaPoint’s acceptance of the offer occurred two days later over the phone while Ross was out of state on a family vacation.

It was while accepting the offer that LaPoint disclosed her pregnancy to Ross. According to the majority opinion, Ross congratulated LaPoint and asked if she intended to return to work following the birth of her child and how much maternity leave LaPoint had taken for a prior pregnancy. When LaPoint replied that she had taken 12 weeks, Ross allegedly told LaPoint the office’s policy permitted no more than six weeks. LaPoint replied that she would consider taking only 10 weeks of leave for the birth of this child.

The next day, Ross told LaPoint her job offer was on hold. She explained that their conversation the previous day had raised two concerns for her. Ross said she wondered why LaPoint hadn’t disclosed her pregnancy during the interview so she and Ross could have discussed her leave needs face-to-face, and that she wasn’t sure her small dental practice could withstand allowing LaPoint the 12 weeks of leave she desired. Ross soon reposted the job and filled it with a former intern who wasn’t pregnant.

The judge, following a bench trial, found that the evidence supported the conclusion that Ross’ decision was actually motivated by her concern over the length of leave LaPoint would want if hired rather than her failure to disclose her pregnancy during her interview. A state appeals court reversed, but Minnesota’s top court said the appeals court engaged in impermissible fact-finding and was bound by the trial judge’s view of Ross’ credibility and the other evidence absent some clear error.

Because the appeals court didn’t find any clear error, it wrongly rejected the trial court’s verdict, the state justices said.

Anger or Hostility Not Required

But the state high court also found that the trial judge appeared to have mistakenly imposed an additional burden on LaPoint in rejecting her claim: a showing that Ross acted out of anger or hostility toward her pregnancy. A “finding of animus, in the sense of dislike or hostility, is not necessary for a forbidden criterion to ‘actually motivate[]' an employer’s decision,” the state supreme court said.

The case now goes back to the trial court so the evidence can be re-evaluated without any consideration of whether Ross harbored an anti-pregnancy animus, Lienemann said. Because animus doesn’t need to be shown under the MHRA, the trial judge will have to decide whether rejecting an applicant because of the inconvenience of pregnancy-related leave supports a finding of illegal bias, she said.

“The takeaway for workers and the courts” from the case is that a plaintiff doesn’t need to point to discriminatory comments or other evidence of animus to establish an MHRA claim, Lienemann said. But the court “confused more than it helped” workers and state trial courts regarding the motivating-factor standard under state anti-bias law, she said.

Under that test, she said, an employer is liable if an impermissible reason motivated a decision “at all.” Unlike under federal law, an employer has no defense that it would have made the same decision regardless of consideration of the impermissible motive, Lienemann said.

The Minnesota Supreme Court “didn’t do a good job of explaining” that its “actually motivated” language fits with the motivating-factor standard, she said. But unless the court expressly overturned prior precedent, which it didn’t, the motivating-factor test remains the same. However, the issue has now likely become confused, she said.

Takeaways for Employers

But Davidson said he didn’t see the case as one involving mixed motives. In true mixed-motive cases, Minnesota law follows the federal mixed-motive test, he said.

The case should illustrate for employers the need to adopt a pregnancy-related leave policy that’s at least as generous as all of the legal requirements that may apply based on the size of the business, Davidson said. It also demonstrates the importance of clearly communicating that policy and consistently applying and enforcing it, he added.

“Here it looks like communications broke down,” he said. The business owner was on vacation at the time and never sat down with the worker to talk things through, Davidson said.

Evidence of the dental office hiring other pregnant women undercut the claim that LaPoint’s offer was pulled out of pregnancy-related bias, he said.

That said, “if the case had been decided the other way” at trial, the state justices likely would have similarly upheld the trial court based on the appeals court’s overstepping its bounds by making findings of fact, Davidson said. “Everyone seemed to want to weigh in on the facts” in this case, he said.

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

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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