A potentially significant case that began here in Georgia is working its way through the federal court system. The case involved an employee who was fired after she twice experienced certain pre-menopause menstruation-related incidents while at work. A ruling from the 11th Circuit Court of Appeals could clarify whether these types of discrimination cases require proof that the employer treated the plaintiff less favorably than other employees outside that gender group who had generally analogous health issues, or whether proof of an employer’s adverse action against an employee for an issue related to her menstruation necessarily amounts to direct discrimination based on sex. If you find yourself in a similar situation, an experienced Georgia sex discrimination attorney can help you assess your rights under the anti-discrimination laws.
The plaintiff in the case, Alicia, was a 911 dispatcher working for an institute that helped people with disabilities. Eventually, after several years on the job, the dispatcher faced a problem that most women will encounter: menopause was closing in. For this dispatcher, her pre-menopausal condition meant that her cyclical menstrual flows became irregular and unpredictable, in terms of both timing and volume.
The dispatcher notified her employer and kept feminine hygiene products with her while at work, but infrequent major surprises still happened. The first time, in August 2015, she leaked through her clothes and onto an office chair. The employer imposed discipline against her and also issued an ominous warning: another occurrence would result in termination. The dispatcher allegedly redoubled her efforts to prevent problems, but, eight months later, she had another accident, which soiled an area of office carpeting. The dispatcher cleaned the carpet herself, but the employer carried through on its previous warning and fired her.
The dispatcher sued for sex discrimination. In her lawsuit, Alicia advanced a case of direct discrimination, as opposed to attempting to satisfy the criteria of the McDonnell Douglas test. In other words, instead of attempting to prove that the institute treated her more poorly than other employees outside her protected gender group, the dispatcher argued that any attempt to impose an adverse employment action against an employee for menstrual leaks automatically amounted to discrimination based upon sex, given that menstrual problems are a “uniquely feminine condition.”
The federal district court for the Middle District of Georgia was not persuaded by the dispatcher’s argument. The judge, in granting summary judgment in favor of the employer, indicated that employees treated negatively by their employers due to menstrual leaks might have a case. The Pregnancy Discrimination Act goes beyond just protecting pregnant employees, and it also potentially covers employees with “uniquely feminine conditions beyond pregnancy, such as pre-menopausal menstruation.” However, making that case involved proving that the employer treated them less favorably than other employees with similar but gender-neutral problems, such as employees with incontinence, which this plaintiff hadn’t established.
The dispatcher didn’t meet that burden of proof because her argument was completely different. She argued that, but for her uniquely feminine condition of pre-menopausal menstrual flow irregularity, she never would have been fired, so the termination was “because of sex.” The District Judge concluded that the law did not extend this far because the dispatcher wasn’t directly terminated for her menstrual issues. She was terminated for soiling company property on multiple occasions. Under those facts, and since she had “no allegation that male employees who soiled themselves and company property due to a medical condition, such as incontinence, would have been treated more favorably,” her case for sex discrimination fell short.
The dispatcher has appealed that ruling to the 11th Circuit. “[B]eing fired for getting your period at work is the very essence of sex discrimination,” an attorney for the ACLU, who is representing the dispatcher, contended in a statement issued regarding the appeal.
If the 11th Circuit agrees with the dispatcher and rules in her favor, it could have a significant impact on the range of options available to employers when it comes to dealing with employees who have issues related to menopause, pre-menopause, or menstruation generally. For advice and representation on this and other discrimination-related issues, contact the Georgia sex discrimination attorneys at Parks, Chesin & Walbert. Our attorneys have been effectively helping both employees and employers in discrimination cases for many years.
To speak with one of our lawyers about your case, call 404-873-8048.
More blog posts:
Self-Represented Med School Professor’s Multiple Procedural, Evidentiary Problems Cost Her in Discrimination Case, Atlanta Employment Attorneys Blog, Aug. 9, 2017
Lack of ‘Similarly Situated’ Males Dooms Tennessee Professor’s Sex Discrimination Case, Atlanta Employment Attorneys Blog, May 26, 2017