ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Saturday, December 23, 1995 TAG: 9512250039
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
NOTE: Above
VIRGINIA'S SEX DISCRIMINATION LAW doesn't apply to firing someone who's pregnant, a Roanoke judge says.
Getting pregnant got Lisa Bailey fired from her job, she claimed in a lawsuit. But a Roanoke judge has ruled that Bailey's employer was legally justified when it terminated her and said "her place was at home with the child."
In a decision this week, Circuit Judge Clifford Weckstein granted a motion to dismiss Bailey's lawsuit against Scott-Gallaher Inc., a Cloverdale company that rents construction equipment.
Bailey, a sales coordinator for the company since 1990, claimed in the sexual discrimination lawsuit that she was fired in 1994 after becoming pregnant and missing work on the advice of her doctor.
In a seven-page decision, Weckstein essentially ruled that Bailey has no case because state law does not define sexual discrimination in relation to pregnancy and childbirth. While expressing some sympathy for Bailey, Weckstein nonetheless ruled that her claims were not supported by the law.
Terry Grimes, a Roanoke lawyer who represents Bailey, said he was "surprised and disappointed."
"This decision in effect forces women to choose between maintaining their employment or terminating their pregnancy," Grimes said.
"Women should not have to make that choice. That is a Draconian viewpoint."
According to Bailey's lawsuit, she became pregnant in 1994. After experiencing premature labor in July 1994, she was told by her doctor not to work. When her doctor cleared her to return to work in October 1994 after giving birth, Bailey called the company to ask when she should report back and was told that she had been fired.
The company's president, Ron Scott, told Bailey she had been let go "because she was no longer dependable since she had delivered a child," the suit alleged.
Scott also said Bailey's "place was at home with her child, that babies get sick sometimes and Bailey would have to miss work to care for her child, and that he needed someone more dependable," the suit claimed.
Scott-Gallaher's attorney, Clinton Morse of Roanoke, did not dispute those allegations in a response to the lawsuit, but maintained that Bailey's claim was not recognized by state law. However, he said Friday that "we are not admitting that what she claimed was true."
But as with all motions to dismiss on technical grounds, Weckstein treated the allegations as if they were true.
The judge began his decision by noting that Virginia is an at-will employment state, meaning that employers and employees can sever their relationships at any time without having to state a reason.
There are certain exceptions that bar termination on the grounds of sex, race, religion or national origin. However, Weckstein ruled that state law does not specifically define sexual discrimination as applying to issues of pregnancy or childbirth.
"Unfortunately for Bailey, she is not the first Roanoke Valley resident" to file a similar suit, Weckstein wrote, referring to a 1974 U.S. Supreme Court decision on which he based his ruling.
In that case, female employees of General Electric Co. in Salem claimed they were unfairly denied benefits for time they missed from work because of pregnancy.
In his majority opinion, now Chief Justice William Rehnquist wrote that, while "it is true that only women can become pregnant," GE nonetheless did not practice sexual discrimination when it excluded pregnancy and childbirth from its benefits policy.
"When the Supreme Court of the United States has held that an employer which engages in disparate treatment because of pregnancy and childbirth does not discriminate because of sex, then a trial court judge is bound to read the same words in the same way," Weckstein wrote in his decision.
Since the 1974 Supreme Court decision, Congress has passed the Pregnancy Discrimination Act, which bars termination because of pregnancy. But Bailey's lawsuit was filed in state court, and Weckstein noted that Virginia has yet to recognize pregnancy and childbirth as exceptions to the at-will employment law.
"Compelling arguments can be made in favor of a public policy that protects an employee's position in the workplace during pregnancy and upon childbirth," he wrote. "It is not the place of the judiciary, however, to adopt and articulate public policy of this sort. Such public policy ... must be declared by the General Assembly."
In a letter to Weckstein on Friday, Grimes asked the judge to reconsider his decision. He noted that a judge in Newport News had ruled the opposite way in a similar case just one week earlier. In that case, Circuit Judge Robert Curran held that forcing women to make the difficult choice of aborting their unborn children or quitting their jobs "is completely inconsistent with the public policy of the Commonwealth."
Although Weckstein has granted a motion to dismiss the lawsuit, that has not happened officially - meaning that he can still take up Grimes' motion to reconsider.
Bailey, who was 27 and living in Roanoke County when the lawsuit was filed in June, has since moved to South Carolina. She could not be reached for comment Friday.
LENGTH: Medium: 97 linesby CNB