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In Florida, is it discrimination to terminate because an employee got an abortion?

A Florida company hired an employee at its St. Petersburg location and the employee requested a transfer to the Clearwater location for her convenience. The employer agreed to the transfer and the next day, the new employee discovered that she was pregnant and promptly informed her supervisor. The employee scheduled a medical procedure to terminate the pregnancy for the following week and she cleared the date with her supervisor prior to the procedure. The supervisor approved the leave and the employee underwent the procedure. One week later the employer performed a two-week performance evaluation of the employee, which reflected no disciplinary issues. Thereafter, the site manager spoke to the employee and notified her that she was being terminated for her absence from work. The manager stated that the medical procedure was not an appropriate excuse for her absence, although it was approved by the direct supervisor. The employee was terminated for taking a day off from work during her probationary period.

Can you fire an employee for getting an abortion?

The employee then filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), and then filed a lawsuit in federal court alleging a violation of Title VII of the Civil Rights Act of 1964.

The employer attempted to dismiss the lawsuit, but the federal judge rejected this attempt.

The Florida company acknowledges that Title VII protects women from discrimination based on their choice to have an abortion. However, the business argued that the law does not require preferential treatment to pregnant employees; it only requires that employers treat pregnant employees the same as non-pregnant employees who are similarly situated.

The Court explained that in order for an employee to state a Title VII claim, she must allege that her employer’s actions were the product of intentional discrimination on the basis of a prohibited factor. Intentional discrimination is a question of fact that employee may establish through either direct or circumstantial evidence.

Although the employer argued that the employee could not prove her case, because she did not allege that she was treated differently than any other employee, the Court noted that in order to withstand a Motion to Dismiss, a lawsuit only need to provide enough factual matter to suggest intentional discrimination.

In this case, the federal Court for the Middle District of Florida reasoned that the employee alleged that she was a member of a protected class based on her sex and her pregnancy, that she was qualified for her position based on her outstanding performance evaluation, and that she was terminated for her preapproved absence to have a medical procedure to terminate her pregnancy. The Court ruled that based on these allegations, the employee had pleaded enough factual matter to survive dismissal.

DeJesus v. Florida Central Credit Union, Case No. 8:17-cv-2502-T-36TGW (M.D. Fla. October 11, 2018).

In 2015 the EEOC issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues which provides the following example: It would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.

Employers should include this recent example when they train their managers as to what may be protected by the discrimination statutes.

If your Florida business needs assistance in how to handle pregnant employee, contact an experienced labor and employment lawyer who has handled pregnancy discrimination cases in Florida. It is important to call your discrimination law firm before you take any adverse action against the pregnant employee, so that your legal counsel can assess your situation and assist you in making sure that you are not violating the discrimination laws.

If you need assistance in such a situation, contact the Law Office of David Miklas, P.A. by email or call us at 1-772-465-5111.

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