"I Didn't Know She Was Pregnant When I Cut Her Hours!"

Discrimination against an employee because she is pregnant violates federal law. Responding to this type of claim by saying you didn't know the employee was pregnant seems like a reasonable defense. But, often times it is not. Usually, it is because at least someone in the chain of command was aware of the pregnancy. That makes it difficult to deny.

School employee's hours cut after requesting maternity leave

In a recent Massachusetts federal court case, an employee alleged her hours were significantly cut, after she informed her employer that she was pregnant and requested maternity leave. Her hours were reduced from full-time to part-time right after she submitted her request for maternity leave.

Her employer argued that the decision to reduce her hours was made by someone in upper management who, supposedly, had not knowledge that the employee was pregnant, or had requested maternity leave. The court did not buy this argument.

The court rejected the employer's defense

Instead, the court found that someone in management most certainly was aware of her pregnancy. Furthermore, there was undisputed evidence that the decision was made with input from someone who had actual knowledge that the employee was pregnant. Because the decision maker relied on that input, there was a sufficient basis to find discrimination.

The argument in that case is quite common. When faced with charges of discrimination, employers often present someone who did not know the employee, as the person who made the decision. The argument goes, if the decision maker was unaware of the employees' protected trait (e.g., race, sex, religious beliefs), he could not have discriminated against that employee because of the trait.

The "Cat's Paw" theory

This approach by employers rarely works, though, because a manager who does not know an employee will rarely make a decision without obtaining some input from a manager who does know the employee. Typically that would be a supervisor, and it is this manager who is often the one with the discriminatory animus. In this situation, the courts will usually find discriminatory bias, nonetheless, based on the "cat's paw" theory.

The cat's paw theory is named for the fable in which a monkey persuades a cat to retrieve chestnuts from a hot fire. Of course, the cat burns his paw pulling the chestnuts from the fire, while the monkey grabs them up for himself, leaving the cat with none.

In employment discrimination, the cat's pay theory refers to the biased subordinate who, lacking decision-making authority, uses a formal decision maker as the scapegoat for the discriminatory actions. Court's usually do not fall for this ruse.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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