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Dec 2006
19
December 19, 2006

Expansion of Potential Liability for Retaliation and Pregnancy Discrimination Claims

More federal employment retaliation and pregnancy discrimination claims will now proceed to a jury trial and avoid a pre-trial dismissal by the court as the result of a new case from the United States Court of Appeals for the Sixth Circuit. In the case of Asmo v. Keane, Inc., Susan Asmo was a regional recruiter for an information technology and consulting business. In October 2001, Asmo informed her employer, Keane, that she was pregnant with twins. A few weeks later, Keane decided to reduce the number of recruiters on its staff, a direct and undisputed result of the economic slowdown following the September 11th attacks.

Asmo’s supervisor selected her for termination because the future recruiting needs in Asmo’s region were lower than in other regions, and because Asmo had less tenure than the other recruiters. Asmo sued claiming pregnancy discrimination, but the district court dismissed her case, holding that Asmo could come up with absolutely no evidence tying her pregnancy to the termination decision.

On appeal, the Sixth Circuit reversed and ordered a trial. The court held that Asmo established a prima facie case of pregnancy discrimination by merely showing that (1) she was pregnant, (2) she was qualified for her job, (3) she was terminated, and (4) there was “temporal proximity” between her termination and the time when her employer learned she was pregnant. Regarding this last point, Asmo told her employer that she was pregnant in October, and then she was fired in December. The court held that this timing was enough to create an inference that pregnancy was a reason for her termination.

The court also decided that there was enough evidence for a jury to conclude that the employer’s stated reason for the termination was false. The court noted that Asmo’s supervisor was silent when Asmo told a group of Keane employees that she was pregnant. The court was suspicious because Asmo’s supervisor did not offer “congratulatory words” and “did not mention her pregnancy at all.” Also, the court also concluded that Keane had changed its reasons for terminating Asmo because Asmo testified that when she was terminated she was told that her lack of seniority and higher pay than other recruiters were factors in the termination decision. During discovery, Keane did not include seniority or higher pay as part of the rationale for her termination. The court second-guessed Keane’s recruiting needs in Asmo’s region, and believed that Keane really would need to recruit more employee’s from Asmo’s region, despite the thorough review conducted by Asmo’s supervisor in consultation with members of Keane’s management.

Even though this case arose in the context of a pregnancy discrimination claim, it has broader ramifications for retaliation claims under all federal employment statutes. In both types of claims, the employee must show that the employer took an adverse action against the employee because of her pregnancy (pregnancy discrimination) or her protected conduct (retaliation). By lowering the standard for showing causation to the mere fact that the adverse action occurred after the employer became aware of the employee’s pregnancy or protected conduct, the court has increased the burden on employers of building a strong record to show a legitimate reason for an employee’s termination.

This case is troubling for a number of reasons, but as a general point, it highlights the difficulty that employers face when terminating any employee in any protected class. Employers should seek competent legal counsel before making significant employment decisions, especially decisions with regard to an employee in a protected class.

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