Tuesday, July 20, 2010

Abortion Protection in the Third Circuit

Earlier this year, I wrote a post reminding readers of a Pennsylvania state employment law addressing abortion. Now, a reminder about abortion and federal law. It's pretty straightforward, actually.

Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act amended Title VII to prohibit discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C.A. § 2000e. In Doe v. C.A.R.S.*, the Third Circuit held that:
Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.
Like I said, straightforward. There is one little twist in pregnancy discrimination cases and that's in the first element of a prima facie case (in bold):
  1. she is or was pregnant and that her employer knew she was pregnant;
  2. she was qualified for her job;
  3. she suffered an adverse employment decision; and
  4. some nexus between her pregnancy and the adverse employment action
One final note on the case, the Third Circuit upheld the lower court's decision to seal the case and allow the plaintiff to use a pseudonym, "Jane Doe."

* Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) order clarified, 543 F.3d 178 (3d Cir. 2008) and cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 432 (U.S. 2008).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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