Wednesday, June 17, 2020

Does Title VII protect employees whose spouses are pregnant?

A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife's pregnancy. 

According to Steven Van Soeren's complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife's pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)

The Pregnancy Discrimination Act (enacted in 1978) amended Title VII's definition of "sex" to make clear that it also includes "pregnancy, childbirth, or related medical conditions." Disney is now arguing that Van Soeren's lawsuit should be dismissed because Title VII doesn't protect a male employee because of his wife's pregnancy. Yet, the statute does not say "a woman's pregnancy"; the definition is gender-neutral. Thus, Disney has an uphill battle to establish that the Pregnancy Discrimination Act doesn't equally cover dads as moms.

Further, consider the following passage from Justice Gorsuch's majority opinion in Bostock v. Clayton County

It doesn't matter if other factors besides the plaintiff's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee — put differently, if changing the employee's sex would have yielded a different choice by the employer — a statutory violation has occurred.

Bostock says very clearly that an employer discriminates on the basis of sex if "changing the employee's sex would have yielded a different choice by the employer." Would Disney have made the same decision relating to a woman's choice to have a child, or did it rely on outdated and illegal stereotypes about a man's role as a provider instead of a caregiver? It's doubtful, based on the comments Van Soeren claims his supervisors made after they learned of his wife's pregnancy.

Bostock leaves open a lot of questions: Can religious employers claim an exemption from Title VII's prohibition against LGBTQ discrimination, and if so, how broadly? Does Title VII's prohibition against LGBTQ discrimination moot the Trump Administration's plan to roll back protections for transgender people from discrimination in health care and insurance coverage? Add to this list the question of just how broadly Bostock's causation standard will apply, and if it applies to other forms of sex discrimination such as pregnancy discrimination? I believe it does, and I believe Disney will lose its effort to have Van Soeren's lawsuit dismissed.

* Photo by Kelly Sikkema on Unsplash