Monday, April 04, 2005

Non-Pregnant Employee Covered by the PDA?

Riddle me this:  When is a non-pregnant woman permitted to bring a claim under the Pregnancy Discrimination Act of 1978 for pregnancy discrimination???  Just ask the 6th Circuit Court of Appeals who recently heard the case of Nurse Suzanne Kocak. (Kocak v. Community Health Partners of Ohio Inc., 6th Cir., No. 03-4650, March 11, 2005.)

In 1999, Ms. Kocak worked for Community Health Partners of Ohio, Inc. and resigned because of medical complications associated with her pregnancy.  In 2000 and again in 2001, she applied to work on a part time basis with her old employer and was turned down both times.  Apparently, Nurse Kocak was not unlike the infamous Nurse Ratched: Community Health asserted that Nurse Kocak was turned down for employment because she was “avidly disliked” by her peers, difficult to work with, and had been involved in frequent conflicts at work. Ms. Kocak, while admitting to these performance issues, maintained her denial of employment was motivated by considerations in violation of the PDA.  The District Court held that Ms. Kocak was not covered by the PDA as she was not pregnant at the time of her reapplication, and no medical condition related to pregnancy manifested itself during this time.

This is when you should scratch your head and wonder, “Where’s the lawsuit here?” Enlightening you with two facts I omitted should solve this confusion:  1.) Ms. Kocak testified that a personnel manager at Community Health asked Ms. Kocak during her 2001 reapplication process if she was pregnant or planning on having any more children; and 2.) Ms. Kocak also testified that her former supervisor said she would not agree to rehire Ms. Kocak because of the complications of her 1999 pregnancy. 

Not surprisingly, the 6th Circuit found the District Court erred in determining that Ms. Kocak was not covered by the PDA; instead, the Circuit Court opined that Ms. Kocak is protected by the PDA and cannot be refused employment on the basis of her potential pregnancy.  Interestingly, the Court declined to comment on whether a plaintiff who had never before been pregnant could assert a claim under the PDA.  So, while a previously pregnant, but not currently pregnant, employee can find protection under the PDA, the riddle remains as to whether a never before nor currently pregnant employee could do the same.

In the end, Community Health was successful in their defense, offering “substantial evidence” that it would have decided not to rehire Ms. Kocak absent any illegal motive.  (Remember the Nurse Ratched similarities?  Enough said.) It appears, however, that this case went all the way to the 6th Circuit because of the two awkward statements made by Community Health management regarding Ms. Kocak’s plans for more children.  Who isn’t groaning loudly after hearing of this completely avoidable debacle?

My two cents for employers: 
1. Every supervisor (including HR) should understand the implications of federal, state and local employment laws.  Do they know what the PDA is and what it means? 
2. Inform those responsible for interviewing and hiring how to properly conduct an interview.  The loose lips of the personnel manager and the hiring supervisor could have easily sunk Community Health’s ship. 
3. Document performance concerns of every employee.  It was only the uncontroverted evidence of Ms. Kocak’s poor performance that saved Community Health.