I won’t bury the lede. Here’s the takeaway from this post. If an employer doesn’t know that an employee is pregnant, it can’t possibly discriminate against her because she is pregnant.
That’s pretty much what happened in this 11th Circuit decision that I read last night.
Here are the pertinent facts:
- In July 2017, the plaintiff learned that she was pregnant.
- On October 3, management was looking to replace the plaintiff.
- On October 5, the defendant hired the plaintiff’s replacement.
- The defendant planned to meet with the plaintiff on October 18 to inform her she would be terminated.
- Between October 5 and October 18, the plaintiff told the defendant that she was pregnant.
- Rather than terminate the plaintiff as planned on October 18, the defendant documented that it would transfer her to another office and follow through with the termination after she had given birth.
- Between October 27 and November 3, the plaintiff took leave due to a complication with her pregnancy.
- On November 6, the plaintiff returned to work and learned that the defendant was transferring her.
- On November 7, the defendant learned of other performance issues involving the plaintiff.
- On November 9, the defendant terminated the plaintiff before she gave birth.
The plaintiff sued for pregnancy discrimination. And, yes, she did lose at the lower court. On appeal, the plaintiff argued that she had shown “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.”
The 11th Circuit, however, disagreed:
[A]s to the timing of her termination, the undisputed summary judgment evidence showed that the decision to fire [the plaintiff] was made before she told her supervisors that she was pregnant…[W]hether [the plaintiff] was going to be transferred to the least profitable office or fired, the undisputed summary judgment evidence showed that [the defendant] decided to take an adverse employment action against her before she announced her pregnancy. [The defendant] could not have intentionally discriminated against [the plaintiff] if it decided on an adverse action before knowing about her pregnancy.
Sometimes suspicious timing can give rise to a discrimination claim. But, until crystal balls become ubiquitous, an employer can’t discriminate if it doesn’t know about an employee’s pregnancy.