Today most employers across America recognize the importance of a pregnant woman’s need for flexible work hours. The lines become blurred however when the father or partner of an unborn child also requests extra leave or a flexible schedule in order to assist the pregnant mother.
Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.
However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.
At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?
Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment
In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.
His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).
Pregnancy Discrimination Must Be Based on Sex
The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.
What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.
Two-Step Associational Discrimination Claim
The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.
In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.
Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.
A new trend for employment discrimination claims?
In this case it is easy to understand why the father would want to accompany his wife to her appointment. The consequences of his decision highlight the current issues in employment law surrounding the desires and needs of expecting fathers and partners of pregnant women.
This case is ongoing and the estate has an opportunity to properly present a two-step associational sex discrimination claim. It will be interesting to see if more employees in the future decide to fight this issue from an employment discrimination point.
Bloomberg Law® helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law, with a fully integrated, innovative legal research platform. Click here to request a free trial.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)