Houston of Appeals Upholds Pregnancy Discrimination Claim Based on Termination Three Months After Childbirth

Both Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code prohibit discrimination based on pregnancy.  But do those statutes apply to an employee who has already given birth and is no longer pregnant?  The First Court of Appeals addressed that issue in Kipp, Inc. v. Whitehead, No. 01-13-00695-CV (Tex. App. – Houston [1st Dist.] Aug. 12, 2014).

Whitehead was an employee of an open-enrollment charter school operated by Kipp.  After returning from maternity leave, she asked to be returned to her old job.  The school declined to do so.  About two months after she returned to work, the principal allegedly told her “You don’t fit i[n]. You just had a baby. You’re just an overpaid teacher. I can’t afford your salary. I gave your job away. You cannot do this job having children. Things have changed around here. If you don’t like it, you need to apply at Nordstrom.”  About a month later, the school fired her.

After Whitehead sued, Kipp filed a plea to the jurisdiction, because it is considered to be part of the public school system.  The trial court denied the plea, and Kipp filed an interlocutory appeal.  The First Court of Appeals affirmed the denial of the plea.

Kipp’s primary argument on appeal was that Whitehead was not a member of a protected class when she was fired, because she was no longer pregnant.  The First Court of Appeals acknowledged that a claim for pregnancy discrimination could arise after childbirth, and held that “drawing the line” must be evaluated on a case-by-case basis:

Women who were pregnant at, or very near the time of, an adverse employment action are members of the protected class, as are women who were on maternity leave, or who had recently returned to work at the time of the adverse action. However, unlike other protected traits, “pregnancy is somewhat divergent” because “‘it is not immutable,’ and at some point, ‘the female employee is no longer affected by pregnancy, childbirth, or related conditions.’”  Thus, one of the primary issues presented in a case in which a woman is not pregnant at the time of an adverse employment action becomes where to “draw th[e] line.” Accordingly, whether the plaintiff is a member of the protected class in pregnancy discrimination cases is best determined on a “case-by-case basis.”  (citations omitted).

Considering the circumstances of Whitehead’s claim, the court held that Whitehead had raised a fact issue as to whether she was a member of a protected class:

We conclude that Whitehead presented evidence establishing a prima facie case that she was a “member of the protected class” in regard to her sex- discrimination claim based on her pregnancy, childbirth, and related medical issues. Her evidence that she returned to work from maternity leave on December 3, 2010 and KIPP terminated her employment less than three months later is sufficient to create a fact issue as to her membership in the protected class. And the existence of this fact issue precludes the granting of KIPPS’s plea to the jurisdiction. Accordingly, we hold that the trial court did not err in denying KIPP’s plea to the jurisdiction on Whitehead’s sex-discrimination claim on the ground that she was not a member of a protected class.

The court also found that Whitehead had raised a fact issue on her separate race discrimination claim, and it refused to consider the issues relating to pretext because only the existence of a prima facie case is at issue in the context of a plea to the jurisdiction.

The result in this case is consistent with common sense: There was sufficient evidence to suggest that Whitehead was fired due to her pregnancy.  However, it is worth noting that the courts will “draw the line” on pregnancy discrimination cases at some point after childbirth.  In a case involving post-pregnancy discrimination in which the employee is not immediately fired after returning from maternity leave (or earlier), it may not be enough to rely on the fact that the employee was replaced by a non-pregnant worker, because the employee herself was not pregnant at the time of her termination.  In the absence of other evidence, the passage of time will negate the logical connection between the pregnancy and the termination.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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