When employers make gratuitous comments or references about an employee's (or an applicant's) age, gender, national origin, or race, for example -- in a performance evaluation, discharge papers, or the like -- the remarks often evidence a discriminatory bias.  This is because such gratuitous comments and references have no pertinence to the employment action at the time.  However, sometimes, such comments or references merely recite events and do not reveal any discrimination.  The Tenth Circuit Court of Appeals, in Anderson v. The Cato Corp., No. 11-3003 (10th Cir. Oct. 27, 2011), recently addressed such a situation, when comments made in documents about an employee's pregnancy merely described events resulting in her dismissal, not a biased reason for her dismissal.

A part-time sales employee who had worked for the defendant only two months was prescribed bed rest by her doctor due to pregnancy complications.  Because she did not qualify for Family and Medical Leave Act leave, and because she was unable to work, her employment was terminated.  On her termination notice, the box marked "Not Eligible for Leave of Absence/FMLA" was checked, and the employee's manager wrote on the form, "having complications with pregnancy."  Also, at the employee's request, in support of a public assistance claim, her manager and assistant manager wrote letters explaining that she was dismissed due to "a pregnancy-related illness," and "complications with her pregnancy resulting in bed rest."  She sued under the Pregnancy Discrimination Act, relying on these remarks.  The Tenth Circuit affirmed summary judgment for the employer.  The comments at issue were neither "direct" nor "indirect" evidence of pregnancy discrimination; when read in context, they merely explained the plaintiff's inability to work and her ineligibility for a leave of absence.  Also, the Court of Appeals held, the assistant manager's letter was immaterial as there was no evidence that the assistant manager was involved in the decision-making process.