Lead Opinion
OPINION OF THE COURT
This case comes on before this court on appeal from the district court’s order affirming a bankruptcy court order expunging the claim of the appellant Deborah Rhett, a black female, which arose out of the termination of her employment when her employer, appellee Carnegie Center Associates (Carnegie), abolished her position. The bankruptcy court had subject matter jurisdiction under 28 U.S.C. § 157(b)(2)(B), (0) and 28 U.S.C. § 1334(b). The district court had appellate jurisdiction over the bankruptcy court’s order pursuant to 28 U.S.C. § 158. We have jurisdiction under 28 U.S.C. § 1291, 28 U.S.C. § 158(d), and 42 U.S.C. § 2000e-5(j).
A. FACTUAL AND PROCEDURAL HISTORY
The facts in the case were developed at the trial of the adversary proceeding in the bankruptcy court. Rhett began working for Carnegie, a real estate company Allan Landis owned and controlled, as a temporary secretary in April 1989. She became a full-time permanent secretary in Carnegie’s Accounting/Finanee Department on July 17, 1989, and received a salary increase of $1,500 in January 1990 based on her satisfactory performance.
In June 1990, Rhett informed her supervisors and coworkers that she was pregnant. When she told Keith Gormisky, the controller, and Gary Turndorf, the chief financial officer and counsel, of her pregnancy both asked if she was going to get married. Turndorf commented that being a single parent was difficult, and Rhett claimed that Gormisky sаid that getting married was: “in society’s eyes ... the right thing to do.” Nevertheless, Turndorf testified that the fact that Rhett was unmarried played no role in Carnegie’s later decision to abolish her position. Rhett also claimed that Gormisky became irate with her just before she left on maternity leave and stated that she was on “thin ice.” The bankruptcy court, apparently attributing this comment to Turndorf, found it related to his view of the quality of Rhett’s work.
Rhett circulated a memo to the managerial officers (including Landis, Turndorf and Gormisky) on December 18, 1990, stating that she planned to be on maternity leave from December 21, 1990, until about April 15, 1991. Carnegie hired a temporary secretary to fill in while she was gone. Carnegie did not have a formal maternity leave policy, but Turndorf testified that its practice- was to “try and hold it open for them if we could” so that “[w]hen they wanted to come back, if they contacted us and there was something open that was suitable, we would offer it to them.” See bankruptcy court opinion at 5-6 (discussing two employees who left on maternity leave and subsequently returned to the same or similar positions).
Carnegie had experienced financial difficulties prior to Rhett’s departure that worsened while she was gone, forcing it to make staff cutbacks to decrease costs. Consequently, just before Rhett originally had planned to return, Carnegie eliminated several positions, including Rhett’s secretarial position, and terminated several employees, including her supervisor, Geoff Hammond. On March 26, 1991, Gormisky wrote Rhett to tell her that her position had been eliminated.
Rhett filed a suit in the district court under Title VII and the New Jersey Law Against Discrimination against Carnegie on November 26, 1993, alleging discrimination on the basis of her race, gender, and marital status.
The main issue on this appeal is whether an employee’s absence on maternity leave can be a legitimate nondiscriminatory reason for her termination. Inasmuch as the district court sat as an appellatе court, we exercise plenary review of its decision. Universal Minerals, Inc. v. C.A. Hughes & Co.,
B. PREGNANCY, RACIAL AND GENDER DISCRIMINATION
On this appeal Rhett claims that Carnegie terminated her employment because of her pregnancy and on account of her race and gender in violation of Title VII and the New Jersey Law Against Discrimination. We confine our discussion to Title VII because her state law claims are analyzed in the same way as her Title VII claims. See Marzano v. Computer Science Corp.,
Title VII prohibits employment discrimination based on an individual employee’s sex. 42 U.S.C. § 2000e-2(a). The Pregnancy Discrimination Act (“PDA”), a 1978 amendment to Title VII, states:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work____
42 U.S.C. § 2000e(k). There is employment discrimination whenever an employee’s pregnancy is a motivating factor for the emрloyer’s adverse employment decision. 42 U.S.C. § 2000e-2(m).
The bankruptcy and district courts analyzed Rhett’s claim as being based on circumstantial evidence implicating the burden shifting framework of McDonnell Douglas Corp. v. Green,
The bankruptcy and district courts held that Rhett did not establish a prima facie case. We disagree with this conclusion but are satisfied that the courts’ error is harmless because the bankruptcy court considered the issues relevant to a reduction in force analysis at а trial and made the requisite findings for such an analysis. Thus, insofar as this case involves a reduction in force, we focus on Carnegie’s reason for terminating Rhett’s employment.
This ease largely boils down to a dispute over one issue: whether terminating an employee because she is absent on maternity leave is a violation of the PDA. The bankruptcy and district courts found that Carnegie eliminated Rhett’s position because she was not at her place of employment at that time, not because of her pregnancy. Carnegie argues, and the bankruptcy and district courts found at least implicitly, that Rhett was not employed by Carnegie at the time Carnegie eliminated her position. Rhett asserts that she was an employee on unpaid leave at that time. Carnegie had no formal maternity leave policy, but it did have a practice of allowing employees to return from leave to the same or similar position if one was available. It is undisputed that Carnegie maintained Rhett’s medical insurance until it eliminated her position on March 26, 1991. Therefore, it appears that Rhett was an employee of Carnegie on an unpaid leave of absence who sought reinstatement. We need not, however, definitely so determine because even assuming that Carnegie still employed Rhett when it abolished her positiоn, under the Armbruster reduction in force framework, she is not entitled to relief.
Regulations promulgated under Title VII provide:
Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions____ Written or unwritten em-
ployment policies and practices involving matters such as the commencement and duration of leave ... [and] reinstatement ... shall be applied to disability due to pregnancy ... on the same terms and conditions as they are applied to other disabilities.
29 C.F.R. § 1604.10(b). The interpretive question and answer section accompanying the regulation specifies that an employer must hold open the job of a woman absent because of pregnancy “on the same basis as jobs are held open for employees on sick or disability leave for other reasons.” 29 C.F.R. Pt. 1604 App. Question 9. On the other hand, the PDA does not require that employers treat pregnant employees better than other temporarily disabled employees. Troupe v. May Dep’t Stores Co.,
Rhett argues that Carnegie terminated her employment solely because of her absence and her absence was due solely to her pregnancy and related medical conditions. Consequently, in her view Carnegie terminated her employment because of her pregnancy. The Supreme Court has held that under the Age Discrimination in Employment Act an employer must ignore an employee’s age in certain employment decisions, but not any other characteristics such as pension expense. Hazen Paper Co. v. Biggins,
We recognize that Smith v. F.W. Morse & Co.,
Notwithstanding the passage in Smith which we have quoted, Carnegie argues that Smith applies here because in its view Smith demonstrates that its action in terminating Rhett’s employment was justified as it, like the employer in Smith, had a legitimate non-pregnancy based reason to discharge the pregnant employee. Smith may be distinguished, however, because Carnegie eliminated Rhett’s position, rather than that of one of the other secretaries, because she was away on maternity leave. While it was apparent that one of the secretary positions was not needed, it was only Rhett’s absence which led to her termination. Carnegie has made no showing that Rhett’s position would have been eliminated if she had not been away at the time. Indeed, Carnegie made no comparative evaluation of the secretaries’ performance. In Smith, the particular position of the pregnant employee was shown to be superfluous while she was away. Smith, unlike this case, did not involve a choice by the employer as to which of several similar positions to eliminate.
This case is unusual in that Carnegie terminated an employee who had performed satisfactorily solely because of an economically justified reduction in force while she was away on maternity leave. See Geier v. Medtronic, Inc.,
Nevertheless, the law covering this ease is clear for the view of the Court of Appeals of the Seventh Circuit which it set forth in Troupe, that an employer legitimately can consider an employee’s absence on maternity leave in making an adverse employment decision, is consistent with and, indeed, is compelled by the plain language of the PDA. Thus, Troupe properly requires the plaintiff employee seeking to recover under the PDA to show that the employer treated her differently than non-pregnant employees on disability leave. See 29 C.F.R. § 1604.10. While we do not ignore the contrary suggestion in Smith, we do not find it controlling because it is inconsistent with the language of the PDA. Thus, we cannot find, as Rhett urges, that the mere consideration of an employee’s absence on maternity leave is a per se violation of the PDA. In short, the PDA does not require an employer to reinstate an employee merely because she has been absent on maternity leave. Rather, the PDA is a shield against discrimination, not a sword in the hands of a pregnant employee.
Rhett has not made a showing that Carnegie treated her differently than it would have treated a non-pregnant employee absent on disability leave. Of course, it was difficult for her to make such a showing because Carnegie never has had аn employee on disability leave for a protracted period for a reason other than pregnancy. Thus, we must affirm the district court’s denial of her PDA claim for the reasons indicated. See Ulloa v. American Express Travel Related Servs. Co.,
The PDA does not require an employer to grant maternity leave or to reinstate an employee after a maternity leave. The PDA merely requires that an employer treat a pregnant woman in the same fashion as any other temporarily disabled employee. In this regard, we point out that it is not unlawful under the Americans with Disabilities Act for an employer when reducing its force to discharge an employee away from work by reason of a temporary disability. See Sanders v. Arneson Prods., Inc.,
Judge McKee in his dissent seems to believe that we are equating “рregnancy with a temporary disability under the ADA.” Dissent at 303. Of course, we are doing no such thing. Rather, we are holding that it is not unlawful under the PDA to terminate an employee absent by reason of pregnancy if the employer would have terminated an employee absent by reason of a different temporary disability. Thus, notwithstanding the intricate reasoning of the dissent, this case at bottom is quite straightforward and uncomplicated.
In view of our analysis, we conclude that although the bankruptcy and district courts erred in finding that Rhett did not make out a prima facie case of pregnancy
In reaching our result, we have not overlooked Rhett’s argument that this case is somehow different than a case based on a claim of discrimination predicated either on race or gender, because she bases her claim on both race and gender. This argument adds nothing to her case because rеgardless of the basis for her claim of discrimination, she cannot establish that the legitimate reason that Carnegie proffered for terminating her was pretextual. Furthermore, we have not ignored Rhett’s argument that. Carnegie’s termination of her position had a discriminatory impact on her based on her race. Rather, we reject this contention as entirely insubstantial for an employee is not insulated from having her position lawfully terminated merely because she happens to be a minority.
Rhett also argues that Carnegie should have considered her for alternate positions. She says that the positions of property management administrative assistant, secretary to Landis and receptionist became open while she was on maternity leave and she was qualified for all of them. It is not disputed that she was not considered for any of these positions. But the bankruptcy court found as a fact, and the district court affirmed, that Rhett was not qualified for the property management position or the position of assistant or secretary to Landis. The bankruptcy court also found that Rhett never indicated that she would take a lower paying or temporary job. Rhett argues that these factual findings are clearly erroneous.
Rhett has offered no more than her own opinion that she was qualified for the property manager position. Gormisky testified that the position required more than basic secretarial skills and he did not believe that Rhett adequately could perform in the job. Turndorf also testified that he would not have hired her for that position because he did not feel she would perform well. This is more than enough support for the bankruptcy court’s finding that Rhett was not qualified. Similarly, Rhett asserts that she was qualified to be Landis’s personal secretary because of her extensive secretarial experience. The bankruptcy court’s finding that Rhett was not qualified for this job is supported by Turndorfs testimony that the job required a special attitude and ability to anticipate Landis’s needs which Rhett did not have. Inasmuch as the bankruptcy court was not clearly erroneous in finding Rhett not qualified for these positions, she has not made out a prima facie case of discrimination because of Carnegie’s failure to hire or interview her.
On the other hand, it is clear that Rhett was qualified for the position of receptionist. But the bankruptcy court held that she never expressed an interest in this job, which paid less than her prior position. Since this is a failure to hire situation, rather than a discharge situation, under McDonnell Douglas Rhett must show that she applied for the position. It is undisputed that Rhett did not apply for this position, or even express any interest in it.
Rhett argues that Carnegie had an affirmative duty to contact her (but cites no case
C. CONCLUSION
We hold, in agreement with the Court of Appeals for the Seventh Circuit, the plain language of the PDA, and the regulations under the PDA, that an employee alleging a PDA violation must show that her employer treated her differently than it would have treated an employee on leave for a temporary disability other than pregnancy. It is not a violation of the PDA for an employer to consider an employee’s absence on maternity leave in making an adverse employment decision if it also would have considered the absence of an employee on a different type of disability leave in the same way. Inasmuch as Carnegie asserted that Rhett’s absence from work, rather than her pregnancy, was the reason for her termination, and Rhett has failed to show that this assertion was pretextual, her claim fails.
In view of our conclusions, we will affirm the judgment of the district court entered August 6,1996.
Notes
. March 26, 1991, is the date Carnegie listed with the EEOC as Rhett's "Date of Termination." In addition, Rhett’s medical coverage continued with Carnegie until this date, as two weeks later she received COBRA information. The bankruptcy and district courts, however, found that Carnegie did not consider Rhett an employee at the time it abolished her position.
. She also made a claim under 42 U.S.C. § 1981 but she has not advanced that claim in these proceedings so we do not discuss it.
. Rhett argues that this case involves a per se violation of the PDA, so that she has presented direct evidence of discrimination. Accordingly, in her view we should analyze the case under Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill,
. We are aware that Rhett alleged certain comments by her superiors which could lead to an inference of discrimination against her, but in holding that there is no evidence of racial or gender discrimination, the bankruptcy court implicitly found that Rhett's testimony that Tumdorf and Gormisky were abusive toward her regarding her status as an unwed mother was not credible, or that the explanation and denials by Turndorf and Gormisky were more credible. We cannot hold this factual finding clearly erroneous. Thus, there was no error in not inferring discrimination on the basis of these remarks. In any event, Carnegie articulated a legitimate nondiscriminatory reason for terminating Rhett and the bankruptcy court, in an unassailable finding, accepted that reason.
. We note, however, that there are federal and state laws which do require parental leave and reinstatement. See 29 U.S.C. §§ 2612, 2614; NJ. Stat. Ann. § 34:1 IB-4, -7 (West Supp.1997). These laws are not applicable in this case because Carnegie has fewer that 50 employees. 29 U.S.C. § 2611(4)(A); NJ. Stat. Ann. § 34J1B-3f.
Dissenting Opinion
dissenting.
I agree that Deborah Rhett’s claim of racial discrimination was properly dismissed. However, I respectfully dissent because I believe that the district court erred in affirming the bankruptcy court’s dismissаl of Rhett’s claim of sex discrimination. The bankruptcy court concluded that “the uncontradicted testimony of the debtor establishes that the debtor had to let someone in the secretarial group go and the fact that Rhett was not working for the company at the time made it logical that she be the one.” Bankr Ct. Op. at 15 (1996). I believe that the issue is not whether the employer had a logical reason for choosing Rhett (It clearly did.), but whether doing so when her absence was due solely to her pregnancy was illegal sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a). I fear that the majority’s failure to hold that it did constitute sex discrimination will eviscerate the protections Congress intended when it enacted the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k), as an amendment to Title VII.
I. BACKGROUND OF THE PREGNANCY DISCRIMINATION ACT
Title VII makes it an unlawful employment practice for an employer
to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex
§ 2000e-2(a)(l). Congress created the Equal Employment Opportunity Commission (“EEOC”) to implement Title VII and the EEOC developed guidelines through which employers and employees could better understand the protections afforded under Title VII. Those guidelines “implemented the Title VII prohibition of sex discrimination”, H.R.Rep. No. 95-948, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4752, and they
Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.... Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy, childbirth or related medical conditions on the same terms and conditions as they are applied to other disabilities ____
29 C.F.R. § 1604.10(b). The guidelines also contain an interpretive question and answer section in which the following exchange is made:
Q: Must an employer hold open the job of an employee who is absent on leave because she is temporarily disabled by pregnancy-related conditions?
A: Unless the employee on leave has informed the employer that she does not intend to return to work, her job must be held open for her return on the same basis as jobs are held open for employees on sick or disability leave for other reasons.
29 C.F.R. pt. 1604, app. Question 9. The majority concludes that this means that Carnegie Center Associates (“Carnegie”) can terminate Rhett for her absence, even though it is caused by pregnancy, so long as Carnegie would have terminated an absent employee who was not pregnant. See Maj. Op. at 295-296.
However, the circumstances leading to Title VII’s current proscriptions against sex discrimination undermine the majority’s analysis. Title VII, as originally enacted, did not explicitly define sex discrimination to include disparate treatment based upon, or related to, pregnancy. As a result, some courts adopted a narrow view of the extent to which Title VII’s proscription against sexual discrimination included disparate treatment based upon pregnancy and related conditions. In General Electric v. Gilbert,
In Geduldig, the Supreme Court upheld the validity of a nearly identical insurance policy against an attack under the Equal Protection Clause of the Fourteenth Amendment. The Court in Geduldig reasoned that the challenged policy was simply a business decision as to which risks an employer would insure. “The program divides potential recipients into two groups pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.” Geduldig,
Justice Brennan dissented, arguing that the Court’s analysis was “simplistic and misleading” because the plan included procedures that were specific to men while excluding pregnancy-related" procedures that were unique to women.
According to Justice Brennan, “the determinative question must be whether the social policies and aims to be furthered by Title VII and filtered through the phrase ‘to discriminate’ contained in § 703(a)(1) fairly forbid an ultimate pattern of coverage that insures all risks except a commonplace one that is applicable to women but not to men.” Id. at 155,
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work....
42 U.S.C. § 2000e(k).
When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision____ The House Report stated, ‘It is the Committee^ view that the dissenting Justices correctly interpreted the Act.’ Similarly, the Senate Report quoted passages from the two dissenting opinions, stating that they ‘correctly express both the principle and the meaning of Title VII.’
II. INTERPLAY OF THE PDA AND THE AMERICANS WITH DISABILITIES ACT (“ADA”)
The majority sums up its position as follows: “[t]he PDA merely requires that an employer treat a pregnant woman the same as any other temporarily disabled employee. In this regard we point out that it is not unlawful under the Americans with Disabilities Act for an employer when reducing its force to discharge an employee away from work by reason of a temporary disability.” Maj. Op. at 297. Thus, the majority equates pregnancy-related disability with temporary disabilities under the ADA, and that analogy drives the majority’s analysis.
I do not think that Rhett’s claim can be decided by simply stating that the PDA requires her to be treated the same as any other employee and reasoning that her position can be terminated because an absent nonpregnant employee could have his or her position terminated under the facts of this case. Although the ease law and EEOC guidelines refer to Title VII’s requirement that pregnant employees be treated the same as other emрloyees, those cases usually involve determining whether employee benefits or insurance policies discriminate by excluding pregnant employees or affording them less protection than afforded nonpregnant employees. That was the issue in Gilbert and Newport News. For example, in Gilbert, Justice Brennan stated in his dissent: “A realistic understanding of conditions found in today’s labor environment warrants taking pregnancy into account in fashioning disability policies---- Contemporary disability programs are not creatures of a social or cultural vacuum devoid of stereotypes and signals concerning the pregnant woman employee.”
Thus, in the health insurance and employee benefits context it is now clear that pregnancy-related conditions must be treated the same as conditions that are not pregnancy-related. However, a simple example demonstrates the danger of carrying that basic premise too far beyond the insurance or benefits context.
Historically, employers have been reluctant to hire women or have afforded women different conditions of employment because of a generalized belief that a female employee would likely leave her job to raise a family. Accordingly, there was a reluctance to devote resources to train or to teach them a job related skill.
I doubt that an employer is precluded from refusing to hire a male employee because of a reasonable belief that the potential employee will leave shortly after he is hired. However, I think few would argue that the same employer could refuse to hire a female job applicant out of a concern that she would soon become pregnant and leave her job to raise a family. Similarly, absent a contract provision to the contrary, an employer could terminate a male employee who missed two weeks of work during his first year on the job in violation of a policy prohibiting more than one week of sick leave during the employee’s first year on the job.
The majority notes that pregnancy is a temporary condition that gives rise to a temporary disability. It argues that since the PDA bars discrimination based upon pregnancy, it merely requires that pregnant employees be treated the same as all other temporarily disabled employees, thereby limiting the comparison group for pregnant employees to nonpregnant employees who have suffered a temporary disability. The majority concludes that, despite her temporary disability due to pregnancy, Rhett can be terminated unless Carnegie would not terminate a male employee who was similarly “temporarily” disabled. See Maj. Op. at 297. That analysis rests upon equating a protected, but temporary, condition (pregnancy) with a temporary unprotected disability under the ADA. The ADA does not shield a non-pregnant employee from termination because temporary disabilities are excluded from the ADA. Regulations that were promulgated pursuant to the ADA define disability as:
(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.
29 C.F.R. § 1630.2(g). “Substantially limits” is defined to mean:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
§ 1630.2(j)(l). Several factors have been identified to assist in determining whether a particular “disability” is of such severity as to come within the protection intended under the ADA. These factors include:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
§ 1630.2(j)(2). “Disabilities” that are temporary do not, by definition, rise to the level of substantially limiting a major life function. See Rogers v. International Marine Terminals, Inc.,
However, just as temporary disabilities are excluded from the protections of the ADA by definition, temporary pregnancy-related conditions are explicitly covered by Title VII’s prohibition against sex discrimination under the PDA. Accordingly, the protection afforded pregnancy-related conditions can not be equated with that afforded temporary disabilities merely because pregnancy is tempo
The majority relies on Rogers and Sanders v. Arneson Prods., Inc.,
Similarly, in Sanders, employee Sidney Sanders (“Sanders”) was terminated while on leave for a cancer related psychological disorder. While he was away other employees assumed his responsibilities and employer Anreson Products decided to replace Sanders rather than allow him to return at the end of his sick leave. Although Sanders suffered from cancer, he conceded that his absence was related only to his psychological disorder that was temporary. Accordingly, the court framed the issue before it as “whether Sanders’ temporary psychological impairment qualifies as a disability under the ADA.” Id. at 1353. The court held that it did not because that impairment did not “substantially limit” a major life function. Id.
If Congress intended to equate pregnancy with a temporary disability under the ADA, it afforded pregnant women precious little protection when it enacted the PDA. Pregnancy is by its nature temporary. Holding that it is therefore the equivalent of a “temporary disability” is hardly consistent with “the social policies and aims to be furthered by Title VII and filtered through the phrase ‘to discriminate’ contained in [that Act]” Gilbert,
The majority also relies upon Troupe v. May Dept. Stores Co.,
III. TROUPE v. MAY DEP’T STORES CO.
In Troupe, pregnant employee Kimberly Hern Troupe was fired from a Lord & Taylor department store for tardiness due to pregnancy. Troupe sued her employer, May Department Stores (doing business as Lord & Taylor), alleging illegal sex discrimination under Title VII. The district court granted Lord & Taylor’s motion for summary judgment and Troupe appealed. On appeal, the Court of Appeals for the Seventh Circuit affirmed, noting that “[t]he great, the undeniable fact is the plaintiffs tardiness.” Id. at 737. The court analogized the plaintiffs plight to that of a hypothetical Black employee who is fired after a kidney transplant because the employer either wants to avoid paying the employee while on sick leave or doubts that the employee will return. The court reasoned that, infiring the Black employee, the employer may be breaking a contract, but it would not be violating Title VII’s protections against racial discrimination as long as the employer would also fire a similarly situated White employee.
As noted above, employers have assumed that female employees may become pregnant and that pregnancy would make them unavailable for work. See Gilbert,
It is jurisprudential sleight of hand to suggest that the PDA does not require that pregnant women be treated better than their male counterpart. That is a misleading statement of the issue. Thus, the court in Troupe misses the analytical mark when it states that “[ejmployers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees,”
Relying upon Hazen Paper Company v. Biggins,
Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age____
Thus the ADEA commands that ‘employers are to evaluate [older] employees ... on their merits and not their age.’ The employer cannot rely on age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly.
When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is____ Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily ‘age based.’
Pregnancy and absence are not, however, analytically distinct, and an employer can not punish for the absence occasioned by pregnancy under Title VII. As noted above, that statute states that it is an unlawful employment practice to “discharge any individual ... or otherwise discriminate ... because ... of sex,” 42 U.S.C. § 2000e-2(a)(l), and, after the PDA, that includes discrimination “on the basis of pregnancy ... or related medical conditions.” 42 U.S.C. § 2000e(k). That protection is meaningless unless it is intended to extend to the “temporary” absence from employment that is unavoidable in most pregnancies. Thus, the absence endemic to pregnancy, unlike factors that may sometimes be a proxy for age, has to be рrotected under the facts of this case. In Hazen Paper, it was the employee’s years of service, not his age, that occasioned the vesting of his pension. The Court was very careful to note that
[W]e do not consider the special case where an employee is about to vest ... as a result of his age, rather than years of service, and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of years of service.
I believe that we should reject the holding in Troupe, and adopt instead the analysis set forth in Smith,
Smith sued, alleging, among other things, violation of Titlе VII. The Title VII claim was decided in a bench trial in the district court, and that court entered judgment for the employer as a matter of law. Smith appealed, and the Court of Appeals for the First Circuit affirmed. Smith argued that the company had violated Title VII because her absence on pregnancy leave afforded the company the opportunity to learn that it could afford to eliminate her position. The court disagreed because it concluded that the employer would have eliminated the position regardless of Smith’s pregnancy, and agreed with the employer’s argument that “even if Smith had not been on maternity leave she would have been flattened by the downsizing steamroller.” Id. at 419. The court reasoned that
“[T]here is little doubt that an employer, consistent with its business judgment, may eliminate positions during the course of a downsizing without violating Title VII even though these positions are held by members of protected groups (pregnant women included)” (citing LeBlanc v. Great Am. Ins. Co.,6 F.3d 836 , 844-45 (1st Cir.1993), cert. denied,511 U.S. 1018 ,114 S.Ct. 1398 ,128 L.Ed.2d 72 (1994); Goldman v. First Nat’l Bank,985 F.2d 1113 , 1118-19 (1st Cir.1993); Montana v. First Fed. Sav. & Loan Ass’n,869 F.2d 100 , 105, 107 (2d Cir.1989); Dister v. Continental Group, Inc.,859 F.2d 1108 -1115 (2d Cir.1988); Pearlstein v. Staten Island Univ. Hosp.,886 F.Supp. 260 , 268-69 (E.D.N.Y.1995))____ [T]he flip side of the coin, however, is that an employer who selectively cleans house cannot hide behind convenient euphemisms such as “downsizing” or “streamlining.” Whether or not trimming the fat from a company’s organizational chart is a prudent practice in a particular business environment, the employer’s decision to eliminate specific positions must not be tainted by a discriminatory animus.
Id. at 422 (citing Goldman,
However, and most significantly for purposes of our analysis, the court also stated:
Title VII mandates that an employer must put an employee’s pregnancy (including her departure on maternity leave) to one side in making its employment decisions— but the statute does not command that an employer bury its head in the sand and struthiously refrain from implementing business judgments simply because they affect a parturient employee.
Id. at 424 (citing Troupe,
Carnegie clearly did not put Rhett’s departure on maternity leave to one side when deciding to terminate her. Rhett’s absence from work was so inextricably intertwined with pregnancy, her protected trait, as to make the two inseparable. In its “theory of transitivity,” the majority separates the events in this case into discrete entities that suggest the causal relationship between Rhett’s pregnancy and her termination. The majority too easily rejects this position. See Maj. Op. at 296 (“This view eliminates Rhett’s theory of transitivity, that if A (termination) is caused by B (absence) which is caused by C (pregnancy), then C causes A.”).
IV. TERMINATION BECAUSE OF PREGNANCY
An employer can not insulate itself from the reach of Title VII by an action that appears neutral, yet has the functional effect of disparately treating an individual based upon a protected trait. See Griggs,
In Teahan, an employee suffering from alcoholism brought an action against his employer alleging that his discharge for excessive absenteeism was in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, because his absences had been caused by that disease. Summary judgment was entered in favor of the еmployer because the district court concluded that there was no issue of material fact as to whether Teahan “was terminated ‘solely by reason of his handicap.” Id. at 514. The district court concluded that the employer “had not relied on Teahan’s handicap ... [and had] a nondiscriminatory reason for firing him (excessive absenteeism).” Id. Teahan appealed.
On appeal, Teahan argued that “because the ground upon which he was terminated was his excessive absenteeism, and since his absenteeism was ‘caused by’ his substance abuse problem, the district court improperly shifted the burden to him to present evidence of pretext.” Id. The Court of Appeals for the Second Circuit agreed, stating that “it does not inevitably follow that termination for conduct resulting from a handicap is not termination ‘solely by reason of that handicap.”
V. CONCLUSION
For the reasons stated above, I would reverse the decision оf the district court and remand this matter to the bankruptcy court for a determination of whether Rhett would have been terminated had her pregnancy-related absence been put aside.
. Justice Stevens also dissented, but his analysis was based upon the policies in question treating the risk of absenteeism caused by pregnancy differently than any other kind of absence. Id. at 161,
. As I discuss below, if the employee’s condition was “temporary” he would not be covered by the Americans with Disabilities Act and could be terminated absent a contract that prevented such an action on the part of the employer.
. The Seventh Circuit notes that "[e]mp!oyers can treat pregnant women as badly as they treat
. I do not mean to suggest by this that the PDA requires an employer to necessarily take affirmative steps to make it easier for a pregnant employee to work. See Troupe,
Nor do I suggest that an employee who is pregnant can not be fired for reasons that are not occasioned by pregnancy. For example, if Carnegie decided, in good faith, to eliminate everyone with a certain salary grade based upon its business judgment, Rhett could be terminated if
. The "solely by reason of” inquiry, the court explained, is "designed to weed out [ ] claims where an employer can point to conduct or circumstances that are causally unrelated to the plaintiff's handicap.” Id. at 516 (emphasis added). In the context of the PDA, the analogue is the "because of or on the basis of pregnancy” inquiry.
The court accepted that the plaintiff's excessive absences were "caused by” his alcoholism be
. Under the Rehabilitation Act, “[t]he question then becomes whether the employee is qualified despite his or her handicap to perform the essential functions of the job.” Id. The employer bears that burden: ”[A]fter complainant proves a prima facie case, the employer is required to rebut the inference that the handicap was improperly considered by first demonstrating that it was relevant to the job qualifications.” Id. at 515.
. Other courts of appeals have refused to adopt Teahan's rationale. See e.g., Williams v. Widnall,