Firing Over a Sex-Linked Condition: Is It Discrimination?

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By Jay-Anne B. Casuga

Sex discrimination in the workplace has been banned under federal civil rights law for more than 50 years, but courts still grapple with what exactly that federal protection encompasses.

For example, if an employer fires someone for a condition that uniquely affects only one sex, is that automatically sex discrimination under Title VII of the 1964 Civil Rights Act? Consider a man fired for priapism, which causes prolonged erections, or a woman laid off because of menstrual problems.

That was one of the central questions in a recent lawsuit brought by a woman who alleged she was fired because she was premenopausal and experienced sudden-onset heavy menstruation that caused her to accidentally soil her office chair. Alisha Coleman settled her case against the Bobby Dodd Institute while it was pending before the U.S. Court of Appeals for the Eleventh Circuit ( Coleman v. Bobby Dodd Institute, Inc. , 11th Cir., No. 17-13023, unopposed motion to dismiss appeal granted 11/6/17 ).

Plaintiff’s and management attorneys were divided on how the Eleventh Circuit might have ruled, or how the issue could turn out in similar cases in the future.

“When an employer takes action against somebody because something is unique to and indicative of their sex, that is a form of discrimination that is unlawful,” Emily Martin, general counsel and vice president of workplace justice for the National Women’s Law Center in Washington, told Bloomberg Law.

But Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., offered a different take.

“It’s not so much the condition, but whether an employer is disparately treating similarly situated people based on gender,” Phillips said.

Discrimination Because of Sex

In Coleman, a lower court rejected the argument that a firing based on a “uniquely feminine condition” was enough by itself to show that a termination was due to sex.

“I think the judge was clearly wrong on that one,” Martin said.

She posed a hypothetical in which an employer says it won’t consider any job applicants who are still menstruating.

“I don’t think it would be hard to recognize that as sex discrimination in employment,” Martin said.

That applies for women and men, though the attorneys said they aren’t aware of any cases in which a man alleged intentional discrimination based on a uniquely male condition.

EEOC’s Take on Sex-Linked Conditions

The Equal Employment Opportunity Commission, which enforces Title VII, hasn’t specifically addressed in guidance whether a discharge allegedly based on menstruation is sex discrimination, said Ernie Haffner, a senior attorney-adviser in the agency’s Office of Legal Counsel.

However, the agency has taken the position in the lactation context that an adverse action against a woman who expresses breast milk at work is sex discrimination, not just because it’s a pregnancy-related medical condition, but because such action affects only women, Haffner said.

The Fifth Circuit agreed with that stance, observing that the action “clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”

“Because of the fact that only women lactate, if an employer singles out employees who lactate, that would be facially sex-based,” Haffner said.

That reasoning potentially could have been applied by the Fifth Circuit in Coleman or in other cases involving sex-linked conditions.

“It is common for courts to look to decisions in other jurisdictions when there is no binding authority,” Haffner said.

Is Unique Condition Enough?

But management lawyers disagreed that adverse actions based on uniquely sex-based conditions alone automatically constitute sex discrimination.

Imagine a scenario in which a man with priapism is fired because his prolonged erection is causing distractions in the workplace.

The “proper analysis” in determining whether he has a sex discrimination claim should involve a look at how the employer treats similarly situated women, said Monica Khetarpal, an attorney with Jackson Lewis in Chicago. Are women with a similarly distracting condition also being disciplined or terminated? she asked.

Although women don’t have erections, and men don’t menstruate, the comparison doesn’t have to involve a “direct parallel,” Khetarpal said.

The judge in Coleman had similar reasoning in finding that Coleman should have pleaded in her complaint that men who also soiled company property, perhaps because of incontinence, were treated more favorably. The plaintiff’s attorneys disagree that Coleman was required to make that showing at that early, motion-to-dismiss stage of litigation. And, they said, identifying comparators isn’t necessarily required to prove discrimination.

Pregnancy Discrimination Act in Picture

Another unsettled issue from Coleman is whether menstruation is a pregnancy-based medical condition, which Title VII does protect. Congress enacted the Pregnancy Discrimination Act in 1978 to expressly prohibit discrimination based on medical conditions related to pregnancy and childbirth. The amendment overturned a divided 1976 U.S. Supreme Court ruling that said pregnancy discrimination wasn’t a form of sex discrimination.

The lower court judge in Coleman said the pregnancy amendment didn’t apply because the worker’s menstruation was a condition related to pre-menopause, not pregnancy or childbirth. Phillips and Khetarpal agreed that menstruation isn’t directly related to pregnancy, and might not fall within the scope of the PDA.

But Galen Sherwin, a senior staff attorney with the American Civil Liberties Union in New York, said that stance goes against case law following Title VII’s amendment for pregnancy and childbirth. Sherwin was one of the attorneys who represented Coleman but spoke to Bloomberg Law only generally about sex discrimination issues.

She cited cases in which employers prohibited women of childbearing age from working in certain positions because of the potential for lead exposure, or required women returning from maternity leave to demonstrate that their menstrual cycles had returned to “normal.”

The Supreme Court in the lead exposure case, and the Fifth Circuit in the menstrual cycle case, both held that the policies were discriminatory under the PDA because they were based on a woman’s capacity to become pregnant and the perceived normalcy of women’s menstrual cycles, she said.

“It should be very clear that conditions that are related to female reproductive capacity are covered,” including menstruation, Sherwin said.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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