Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, September 12, 2017

Can a Man Sue for Pregnancy Discrimination?

Can a Male Employee Sue for Pregnancy Discrimination?

Congress enacted the Pregnancy Discrimination Act of 1978 which amended Title VII of the Civil Rights Act of 1964 and made it unlawful sex discrimination for an employer to discriminate on the basis of pregnancy, childbirth, or any related medical conditions.

 

However, there is currently little case law on whether or not a male can bring a claim of employment discrimination under the Pregnancy Discrimination Act, based solely on his wife’s pregnancy.

 

At what point, if at all, is it considered employment discrimination when an expecting father or partner is denied particular benefits or is subjected to adverse employment actions that an expecting mother may not be?

 

Fired for Accompanying His Pregnant Wife to a Doctor’s Appointment

 

In a recent tragic case, a Mississippi man committed suicide after he was fired for taking a day off to accompany his wife, who had been diagnosed with a high-risk pregnancy, to a pregnancy-related appointment.

 

His estate filed a complaint against his employer alleging that he was fired because of his sex and his wife’s pregnancy. Estate of Pennington v. Southern Motion, Inc., 2017 BL 313057 (N.D. Miss. Sept. 06, 2017).

 

Pregnancy Discrimination Must Be Based on Sex

 

The court turned to precedent and found that the only two cases to address this issue, Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 56 FEP Cases 1533 (E.D. Va. 1991) and Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 100 FEP Cases 1416 (7th Cir., 2007), held that in order for a male to properly bring an employment discrimination claim based on pregnancy, he must allege that he was discriminated against because of his sex.

 

What makes this case unique compared to most sex discrimination cases is that the estate did not allege that the male frame builder was treated less favorably than female frame builders. Instead, it argued that he was “treated less favorably than male employees whose wives were not pregnant.” It unsuccessfully attempted to bring an associational claim, which depends on unlawful discriminatory hostility arising out of a relationship.

 

Two-Step Associational Discrimination Claim

 

The court found that the estate couldn’t bring its claim because a successful associational claim of sex discrimination in this case must be based on two arguments. It must allege 1) that the male was fired because of his partner’s pregnancy, and 2) that a female would not have been fired because of her partner’s pregnancy.

 

In other words, the discrimination in this case must be based on the male’s relationship with his pregnant wife and it must be based on the male’s sex, which the estate didn’t allege.

 

Although the court found that the man’s estate couldn’t go forward with its complaint, it will be allowed to refile an amended complaint to fully plead the associational claim against the employer.

Isn't this a Family Medical Leave Act claim?  Of retaliation for caring for a sick/pregnant family member?  Unless the FMLA didn't apply because he worked for a small employer.

http://lawprofessors.typepad.com/gender_law/2017/09/can-a-man-sue-for-pregnancy-discrimination.html

Equal Employment, Pregnancy | Permalink

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