Part of the Title VII of the Civil Rights Act is the Pregnancy Discrimination Act (PDA). The focus of a PDA claim is whether an employer's policy treats pregnant workers less favorably than it treats non-pregnant workers who are similar in their ability or inability to work; or whether an employer subjects a pregnant worker to a materially adverse employment action, including a hostile work environment, because of pregnancy.

Simulation - Case Study (Hypothetical)

PROMPT

Analyze and discuss the attached Case Study according to federal discrimination law. In your main post include the answers to the following:

1. Cite with hyperlink (so as to share for everyone) at least one federal court case of similar facts that is no older than 2018 and use in your discussion. (Similar facts means adverse employment action, such as being demoted or reassigned with lower pay, or terminated from employment, because of pregnancy.) Suggested search databases: Google Scholar, Findlaw, Justia 2. What is meant by "pretext for discrimination?" 3. What do you see as possible evidence of discrimination by the employer in the Case Study? 4. Based on this Case Study, explain at least one recommendation that is a take-away lesson for management in employment practice.

lderlyCare Employer (AC) hired Mavis Employee (Mavis) on February 1, 2018, as a Department Head supervising a team of 4 managerial direct reports.

Mavis reported directly to Carlee Director (Carlee). Carlee in turn reported directly to Bigly VP (Bigly). AC's "Maternity Leave" Policy:

At 49 employees, AC was not subject to the Family and Medical Leave Act (FMLA) but was well over the required number of employees to be covered by the PDA. AC had a maternity leave policy that provided for an employee to take up to 8 weeks of unpaid leave for pregnancy and birth of a child. The policy provided that the employee would keep the same - or equal - position at equivalent compensation and benefits upon return to work at expiration of leave. The employee could take less than 8 weeks at the employee's choice and leave time could be used intermittently during pregnancy at employee's need and choice. This policy complied with the applicable state law.

AC does not have an HR department. Timeline of Events:

December 1, 2018: Carlee evaluated Mavis, writing: "meeting expectations in most categories." No specific negatives were noted. Carlee also wrote a note, "With less than a year with us you have really pulled this Department together."

February 14, 2019: Mavis informed Carlee she was pregnant by email, generating the following email trail through February 21, 2019, among Mavis, Carlee, and Bigly.

2.14.2019 4:00 pm To: C..e@AC.org From: M..s@AC.org RE: FYI - me Hi Carlee, So pleased to be able to share that I'm pregnant! All is well, expected arrival in late August. Best, Mavis

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2.14.2019 4:25 pm To: M..s@AC.org From: C..e@AC.org cc: Bigly @AC.org Re: FYI-me WOW Mavis!

Congratulations, but this means I am going to be down a Department Head when you're out and with one of your direct report positions open at the same time and needing a replacement due to Clyde's retirement in August!

Are you planning to take leave for this? Carlee

2.15.2019 8:00 am To: C..e@AC.org cc: B..y@AC.org From: M..s@AC.org Re: FYI-me - LEAVE Hi Carlee,

Yes, I plan to take childbirth leave according to AC's "Maternity Leave Policy." I will submit the appropriate advance paperwork. At this time, my plan is to work close to my delivery date.

Regarding Clyde's retirement, shouldn't we be searching for his replacement now, to come on before Clyde leaves? Clyde could then assist in training his replacement before he leaves at the end of August.

Best, Mavis

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2.20.2019 10:00 am To: M..s@AC.org cc: C..e@AC.org From: B..y@AC.org Re: FYI-me-LEAVE Dear Mavis,

We certainly can start recruiting soon for Clyde's replacement and I will discuss that with Carlee, but the fact remains that training the new person, assuming a suitable replacement can be hired by September, is the responsibility of that person's Department Head. You will not be here in September. Clyde will still be here in August. Are you even planning to return from maternity leave? Many women don't I hear. And what if you need to go out earlier than in August? We are happy for you but need to have a full staff. Clyde and you being gone at the same time is going to be a problem for Carlee with short staffing.

If you are intending to return from leave, would you be willing to return in Clyde's position? Then we could work on a replacement for the Department Head position now and you could provide a transition with your replacement this summer before you go out on leave.

Please give this some thought. Bigly.

2.21.20199:00 am To: B..y@AC.org cc: C..e@AC.org From: M..s@AC.org Re: FYI-me - LEAVE Dear Bigly,

Thank you for your email of 2.20.2019.I am surprised that my maternity has caused such concern. First, yes, I absolutely plan to return to work from leave to my position as Department Head, as provided by AC's Maternity Leave Policy. You are proposing a demotion because I am pregnant and planning to use leave. I do not accept a demotion. I love my job.

My department is running smoothly, as Carlee's review supports. My short absence following the birth of my baby will not cause the disruption you fear. I will make sure everyone is prepared with what is needed to operate with Carlee's onsite direction during my absence and I will always be reachable for questions.

I would be happy to meet with you and Carlee any time to discuss any operational questions you might have and cover possible contingencies.

Best, Mavis.

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March 4, 2019 - At Mavis' request, Mavis and Carlee met to discuss the projected timeline for Mavis' leave dates. Mavis also asked about recruitment for Clyde's replacement to which Carlee did not respond.

March 22, 2019 - Carlee met with Mavis for a one-month performance improvement plan (PIP) for being late to work twice in 2 weeks and missing a department meeting due to a doctor's appointment. Carlee said she realized the attendance was pregnancy related but set a bad precedent for the other employees and Mavis had not checked in with Carlee directly about the absences. Mavis stated she had left word with the department scheduler, not realizing Carlee wished a direct call, as prior to this she had never been late or missed a meeting. She also asked if anyone had complained and Carlee said "no," but if Mavis was going to have trouble keeping up with her work, she should consider taking on a lesser role in the department. Mavis pointed out that the Maternity Leave Policy contemplated absences and this seemed to be a communication problem and a need to clarify what Carlee wanted. They agreed that instead of calling in "late" Mavis would take either a half or whole day leave under the policy for such occasions and do the same for doctor appointments. She would call in to Carlee directly to log the time. This would count against the 8 weeks maternity leave allotment. Carlee also noted there were no other problems with Mavis' performance.

July 15, 2019 - Bigly Meeting. (Events had progressed without incident. Mavis had used a total of 6 days intermittent credit against maternity leave since announcing her pregnancy in February. The PIP period from March had ended positively without incident.) Bigly met with Carlee and Mavis and advised Mavis that he had received a call that Clyde was gone as of now, instead of end of August, due to a heart attack. Bigly stated that Mavis was going to have to take on Clyde's duties indefinitely, in addition to her own, as his position was not going to be filled at this time. Bigly wanted Mavis to perform an in-depth job analysis of Clyde's position including cost/benefit, which he deemed she could do best while actually doing the job. Clyde's duties required one day out-of-office travel per week within the city. Mavis would now need to work longer days, especially on the travel day, as well as performing the analysis, a major project. Mavis asked about additional compensation for the added work. Bigly replied there was none. Mavis asked, how long was this going to be? Bigly said it depended on her analysis, which he and Carlee would evaluate while she was out on leave, scheduled to begin August 26th. Mavis pointed out that this was in effect doubling her work. Bigly said her option was to move to Clyde's position permanently, as had been previously offered; otherwise she had to take on Clyde's job along with her Department Head position. Mavis thought to herself that she was not taking a demotion or quitting, so she agreed.

Note: Mavis also briefly considered starting her leave earlier considering the stress this development posed, but she felt this would be unprofessional and, further, did not want to short change the post-partum time with her baby that she wanted the leave for. The considerably heavier schedule did prove to be a heavy burden.

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07.31.20196:00 am To: C..e@AC.org From: M..s@AC.org Re: Manager CXV Position Analysis (Review Draft) ATT/xcl

Dear Carlee,

Attached to this email is a draft of the Job Analysis with Cost/Benefit that Bigly requested for this job position. As you are aware I have been working long hours to cover this position. I would appreciate your eyes on this to see if I have covered what Bigly is after, before I finalize it. My leave is scheduled to begin on August 26th,and I want to have this finalized before then. If you could just give me some general comments and any direction needed if I'm off base, that would be very helpful.

Thank you! Best, Mavis

08.06.20199:00 am To: C..e@AC.org From: M..s@AC.org Re: Manager CXV Position Analysis (Review Draft) ATT/xcl

Dear Carlee,

In case you missed this, attached is myy email of 07.31.2019with my draft report/analysis of the Manager CXV Position that Bigly requested in our meeting on July 15, 2019. He wants this before my leave starts. I was hoping for your input before finalizing it. Do you have questions or comments I could use to finalize this?

The extra work has been stressful, but I think I've covered what's needed. Please advise as soon as possible. Thank you! Best,

Mavis

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08.12.20194:00 pm To: M..s@AC.org From: C..e@AC.org Re: Manager CXV Position Analysis (Review Draft) ATT/xcl - NOTES

Hi Mavis:

Sorry I haven't answered you sooner. I have been slammed with other projects. I have finally taken a breath and reviewed your draft. Good idea to run it by me first. It needs a little work. Overall, you have hit the key areas but there are a few points that need some input. Unfortunately, Bigly did not give you a lot of direction on his thinking. He is trying to decide if Clyde's position is still necessary. Clyde was here for 20 years. Should his approach and his duties be updated? Reimagined? Eliminated? A lot of what he did worked because of his people skills and relationships. How will those translate to someone new in the job? Have you been able to get a feel for the people? I don't see any of that in your notes. Costs - I see you have factored in the department budget, and that's good. If the job is reimagined how could that translate?

If you think about these points and take a look at my notes attached, you have a good basis here to finalize this. Go ahead and do that and send it to Bigly with a copy to me. Knowing you, it won't take you long to polish this up. I know your leave starts the 26thbut Bigly is anxious for this so try to get it to him tomorrow if you can.

By the way I spoke to Lois in the Q-Z Dept last week and she mentioned how well you are doing with everything on your plate right now. She said your report in the Strategy Meeting impressed everyone. Well done!

Thanks for everything you are doing. Carlee.

08.13.2019, 6:00 am

AC VOICEMAIL SYSTEM - Transcript of Direct Message to Carlee Director

"Message from: Outside Caller - Yeah, hi, Jason here, Mavis Employee's husband? I am at the hospital with Mavis, and uh, we're having a baby!! She's doing ok; her blood pressure is up, and her water broke earlier than we planned, kinda scary..... but, yeah, .... so, uh,... so hey it's all good right now..... so she's not coming in today Carlee. ....heh.... I guess her leave is starting today Carlee......Thanks. Bye."

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August 15, 2019 [Letter to Mavis from Bigly VP, States the following:] Dear Mavis,

I regret to inform you that effective as of the date of this letter your employment with AlderleyCare is terminated for cause. In review of your recent performance, especially the last 30 days of your work, I have found numerous job tasks left incomplete, notably a major report analysis of the Manager CXV Position. This report was assigned to you in July with the directive it would be complete before you departed on maternity leave. You left your position on leave without completing this critical report and as well as other tasks unfinished without direction to your staff. Further, earlier this year your Director issued you a PIP. More than once, you were given the opportunity to accept a less demanding position to help you do better, which you refused. Overall, your performance has been unacceptable for what we require of a Department Head.

Your final paycheck is enclosed. Yours truly. Bigly VP