Pregnancy Discrimination Act Includes Protection After Abortion

June 3, 2008 ( - In what it called a precedential ruling, the 3rd U.S. Circuit Court of Appeals has determined that the decision to terminate a pregnancy is protected under the Pregnancy Discrimination Act (PDA).

The appellate court noted that plaintiff Jane Doe did not claim she was discriminated against because she was pregnant or that she had been fired while on maternity leave, as is typical in most PDA suits, but instead alleged she was discharged because she underwent a surgical abortion. In its opinion, the court pointed to judicial history which indicated that “because [the PDA] applies to all situations in which women are “affected by pregnancy, childbirth, and related medical conditions,” its basic language covers women who chose to terminate their pregnancies.”

The opinion also included the Equal Employment Opportunity Commission (EEOC) guidelines interpreting the PDA, which says: “The basic principle of the [PDA] is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired … merely because she is pregnant or has had an abortion.”

According to the opinion, the judicial history along with the EEOC guidelines indicate that no employer may fire or refuse to hire a woman simply because she has exercised her right to have an abortion. The court held that the term “related medical conditions” in the statute includes an abortion.

Once the court determined that abortion was a protected action under the PDA, it looked at the evidence regarding discrimination presented by both parties. The appellate panel said the testimony indicates that although other employees were not expected to call the office every day, Doe’s employment was terminated for precisely this reason. Doe’s employer claimed she was terminated for abandoning her job.

According to the opinion, this testimony alone satisfied Doe’s burden of establishing that other employees who were similarly situated were treated differently than her, and raised an inference of discrimination sufficient to satisfy her minimal burden of establishing a prima facie case.

Further, the court said a remark overheard by Doe’s sister-in-law Leona Dunnett, who worked for the same employer, could be construed as discriminatory. Dunnett overheard an employee saying to Doe’s supervisor, “I don’t know what all this secrecy behind [Doe] losing her baby was.” To which the supervisor remarked, “She didn’t want to take responsibility.”

The appellate court remanded the case back to District Court for further proceedings.

During her pregnancy, Doe's doctor telephoned her at work to inform her that problems were detected in her recent blood test and that further tests were necessary. Doe learned that her baby had severe deformities and her physician recommended that her pregnancy be terminated.

Doe's husband spoke with her supervisor and told him that the pregnancy would be terminated the following day. Doe's husband requested that she be permitted to take one week of vacation the following week, and according to his testimony, the supervisor approved the request for a one-week vacation

As Dunnett was leaving work to attend the baby's funeral, she noticed an employee packing up Doe's personal belongings from her desk. After the funeral, she told Doe what she had seen, and Doe called her supervisor who told her she had been discharged.

Doe then filed a timely charge with the EEOC and was issued a right-to-sue letter.

The opinion in Doe v. C.A.R.S. Protection Plus Inc. is here .