Thursday, June 30, 2011

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or