Bar None: Retaliation Violates Anti-Discrimination Laws

“Was that on purpose?” a lawyer at the firm where I worked asked me more than twenty years ago when I disclosed that I was pregnant with my first child.

Clearly, this resonated with me, and I tell the story often.

One female employee now has a similar story. This week, one Oregon bartender filed a federal lawsuit in the U.S. District Court for the District of Oregon against the owner of the bar where she worked alleging that her boss cut her hours, changed her shifts, and then fired her after she disclosed she was pregnant.

The bartender, Cory Jo, alleges unlawful sex discrimination, pregnancy discrimination, and retaliation.

It’s the retaliation piece I want to talk about today. But first….

What Is Pregnancy Discrimination?

First, and in general, pregnancy discrimination is a type of sex discrimination.

And private employers that employ more than 15 employees must make reasonable accommodations for pregnant workers, including employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions.

In fact, the Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964 (Title VII). The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the federal anti-discrimination laws, explains:

Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.

For more information about pregnancy discrimination, the EEOC has a handy web page and Fact Sheet.

How Does An Employer Retaliate?

Next, once an employee complains to their supervisor about sex discrimination, if the employer then demotes or terminates the employee or takes any adverse action, the employer can be held liable for retaliating against the employee for complaining about discrimination.

Why? Employers cannot deny pregnant workers employment opportunities or retaliate against them for requesting a reasonable accommodation.

To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two, i.e., an adverse action following a statutorily protected activity.

Informing management about unlawful workplace discrimination is “protected activity” under Title VII, which includes an anti-retaliation provision prohibiting management from subjecting an employee to an “adverse action” (like excluding said employee from activities and communications) when that employee has opposed any practice made an unlawful employment practice by Title VII.

But Is Reducing An Employee’s Hours or Shifts Really Retaliation?

You bet, it sure can be. If Muse proves that her allegations are true. Most bartenders make their money in tips. When an employer reschedules a bartender to a less lucrative shift, i.e., the morning shift, that constitutes an adverse action.

To bring this full circle, the complaint also alleges that the owner asked if she intended to have the baby.

Yup.

He changed her hours, and she complained. So he fired her.

Employer Takeaways

For now, the employee’s allegations are only that—allegations.

But I’ll say this: a woman should not have to be afraid of losing compensation (or a promotion or other opportunity) for disclosing a pregnancy and/or requesting reasonable accommodations.

Nor should she have to accept an accommodation she does not want.

Serving up stereotypes is retaliation.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.