The Connecticut Appellate Court recently upheld a ruling by a trial court granting summary judgment to an employer who fired a pregnant dentist for chronic tardiness even though the tardiness was due to her morning sickness. The pregnancy discrimination claim was asserted under Connecticut state law and the court looked to interpretation of comparable federal laws for guidance. The case is Phadnis v/ Great Expressions Dental Centers of Connecticut (Ct. App. Ct. 1/3/17).
Chronic tardiness due to morning sickness. The court first concluded that neither pregnancy nor morning sickness is recognized as a disability under state or federal law. It then rejected the dentist's claim that the employer had engaged in pregnancy discrimination on the ground that the dentist had not presented evidence that her pregnancy was a motivating factor behind her termination. The employer presented evidence that it had terminated the dentist's employment because of her chronic tardiness as well as the fact that she had had a conflict with another employee in the office. With regard to the tardiness, the dentist had requested (and the employer) had approved a late start for the dentist "until such time as her morning sickness became more management." The court noted that there was evidence that the dentist was late nearly every day for two months, and concluded that a flexible schedule "cannot be equated with being late nearly every day." The dentist argued that tardiness was a pretext for discrimination because there were "no rigid disciplinary policies regarding tardiness," she was not given any prior warning or discipline for tardiness, and others maintained flexible schedules. From the court's view, this was not enough to show discrimination.
Dentist's request to transfer denied. The dentist had also requested a transfer to another office which could have better accommodated her tardiness because it had more dentists on site who could cover for her if she were late. The employer approved the request but terminated the dentist's employment days before it was to take effect. Under Connecticut law, it is unlawful for an employer "to fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy and the employer or pregnant employee reasonable believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus." The court concluded that the dentist's request for a transfer was "for her own convenience" and not because of any potential injury to her or her fetus. The court rejected the dentist's argument that she and her fetus were in danger because on her commute to work she was often forced to pull over to vomit as a result of her morning sickness. The court concluded that even with the transfer she would still have to commute to work and, therefore, any such alleged danger was the same.
Lessons for employers? Employers should be cautious about viewing this case as some type of green light to fire employees who are pregnant. State laws vary on the extent to which employers must accommodate pregnant employees. Further, this employee was not FMLA eligible and if she had been she could have requested intermittent leave to cover the days she was late to work.
In many cases the sympathy is going to be with the pregnant employee and not the inconvenienced employer. Here, the court seemed to be influenced by the fact that when the dentist was late she inconvenienced waiting patients. Indeed, the court commented that most of the practice's patients were "nonsalaried, blue collar workers" for whom early morning appointments were critical so that they suffer less time away from their jobs."
And, it is important to point out that even though the employer won this case, the decision to terminate the dentist in this manner did result in a lawsuit and the expense and aggravation associated with it.