THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, January 14, 1996 TAG: 9601160446
SECTION: BUSINESS PAGE: D1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 197 lines
Imagine you're a woman working for a small company somewhere in Virginia. One day you get pregnant. The next day you get fired.
Can the boss do that? Can he fire you just because you're pregnant?
No, a judge ruled last month in Newport News. That's illegal, a form of sex discrimination. ``A female fired on account of pregnancy has a state law tort claim for wrongful discharge,'' Circuit Judge Robert W. Curran wrote.
Yes, a judge ruled one week later in Roanoke. The firing is perfectly legal. Virginia is an ``at-will'' state. ``Either party may terminate the employment relationship for any reason, or for no reason,'' Circuit Judge Clifford R. Weckstein wrote.
Which judge is right? Only the Virginia Supreme Court can say for sure - and it probably will if these discrimination cases are appealed.
At stake are the employment rights of women who work for Virginia companies with fewer than 15 employees. About 127,000 Virginians become pregnant every year, a fair number of whom work through their pregnancies and beyond.
``It is a hot issue that affects a lot of people,'' said Terry N. Grimes, a lawyer who represented the fired woman in the Roanoke case.
Remarkably, the Virginia Supreme Court has never addressed the issue, even though pregnancy discrimination has been illegal under federal law since 1978. But then, federal law applies only to companies with 15 employees or more. Employees at small companies must make their discrimination claims under state law.
And in Virginia, the law on pregnancy discrimination is nearly non-existent, which makes a discrimination case a virtual crap shoot. The result depends on how each judge reads the Virginia Human Rights Acts, which bans sex discrimination, but doesn't even mention pregnancy.
The Roanoke and Newport News cases illustrate the vagaries of the law.
``What you've really got here is a judicial philosophy debate,'' said Gregory N. Stillman, a Norfolk lawyer who represented the defendant in the Newport News case.
``We're really dealing with an area of the law that's very unsettled,'' agreed Thomas F. Hennessy, a Chesapeake lawyer who represented the plaintiff.
The problem is the law, or lack of it. The Virginia Human Rights Act explicitly bars discrimination based on race, color, religion, national origin, sex, age, marital status or disability. It says nothing about pregnancy.
On one side, some lawyers say that discrimination against pregnant women is a form of sex discrimination because only women can become pregnant. Many people just assume, wrongly, that that kind of discrimination is illegal.
``My feeling (at the time) was, of course that's against the law,'' said Cheryl A. Smith, the plaintiff in the Newport News case. ``Everyone I talked to said, `Well, you can't do that. You can't fire someone because they're pregnant.' ''
But some lawyers say the law must be read narrowly. They say only the General Assembly can make pregnancy discrimination illegal, and so far it hasn't.
Weckstein, the Roanoke judge, said he is sympathetic to the pregnant plaintiff in his case, but is powerless to act on her complaint.
``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,'' Weckstein wrote. ``Congress, in enacting the Pregnancy Discrimination Act, accepted such argument. Enlightened public policy might very well prohibit the sort of actions about which (the plaintiff) complains in this case.
``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.''
The two cases from Roanoke and Newport News, so dissimilar in outcome, are alike in background.
``They are factually and legally indistinguishable,'' Grimes said. ``Only the names have changed.''
The Newport News case came first.
There, Smith, a 36-year-old business manager, was fired in December 1994 from the film company, Cinebar Productions, which makes documentaries for nonprofit museums and arts groups.
Smith was fired about halfway through her pregnancy, just four days before Christmas. She says her boss, Barbara Bottom Forst, found out about her pregnancy at a company Christmas party and made a public scene.
``I was humiliated. I was made to feel like I'd done something wrong,'' Smith said.
A few months later, Smith sued Forst and her companies, Cinebar Productions and Chloe Productions, for pregnancy discrimination, seeking $1.35 million in damages. Then, the company filed a demurrer, a legal objection that the lawsuit has no basis in Virginia law.
On Dec. 11, Judge Curran overruled the objection, saying Smith has a legal case under Virginia law. It is the first time a Virginia judge has allowed a pregnancy discrimination lawsuit to go forward, lawyers say.
Why is the ruling so unusual?
Until 10 years ago, state law let a boss fire an employee for any reason at all. That changed in 1985 with a landmark ruling from the state Supreme Court called Bowman v. State Bank of Keyville. It allowed employees to sue if they were fired in violation of ``public policy.''
In 1994, the court made another landmark ruling called Lockhart v. Commonwealth Education. It expanded the Bowman exception to include cases of race and sex discrimination.
Now, the Newport News judge has found that pregnancy discrimination also violates ``public policy.'' In a four-page opinion, Curran wrote that Virginia has ``a historical interest'' in protecting pregnancy, dating back to an 1887 abortion statute.
``Long before the commonwealth established a policy of equality in sex and race, there existed a public policy against any interruptions of pregnancy,'' Curran wrote.
In effect, Curran has said that judges need not rely on written laws like the state Human Rights Act to determine that a particular a case violates ``public policy.'' It is up to each judge to decide on a case-by-case basis.
``No fixed rule can be given to determine what is public policy,'' Curran wrote.
The case will go to trial sometime later this year.
The Roanoke ruling came eight days later.
In that case, a 27-year-old sales coordinator named Lisa Bailey was fired in October 1994 from a small company that rents construction equipment, Scott-Gallaher Inc.
In her lawsuit, Bailey said she was axed when she tried to return to work after having a baby. She had left the business three months earlier after experiencing premature labor.
Her boss allegedly told her ``she was no longer dependable since she had delivered a child; that 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,'' according to the lawsuit.
Was it a case of discrimination?
Not in Virginia, the judge ruled. In a seven-page opinion, Weckstein said that a woman fired because she is pregnant, or because she gave birth, has no exemption from Virginia's at-will doctrine.
``The words of the Virginia Human Rights Act are clear and unambiguous,'' Weckstein wrote. The act does not mention pregnancy, he concluded, and ``there is no room in this language'' to draw the conclusion that pregnancy discrimination equals sex discrimination.
``In the absence of specific legislation adopted by the Virginia General Assembly, or specific direction by the Virginia Supreme Court,'' Weckstein refused to broaden state law on the subject.
Last week, Weckstein refused to change his ruling to conform with the Newport News ruling.
That leaves labor lawyers with two conflicting precedents.
Stillman, the defendant's lawyer in the Newport News case, fears that judges are slowly eroding the state's at-will doctrine with the Bowman ruling, the Lockhart ruling and now the Smith ruling. This, Stillman said, will hurt small businesses that will be forced to defend themselves against a growing number of bogus claims.
``Creative trial lawyers will use Bowman to create cases of actions where none existed previously,'' Stillman said. ``To be quite honest, I think the only ultimate resolution is going to have to be a clarification of Bowman by the Supreme Court.''
Predictably, plaintiff's lawyers are delighted at the trend.
``It is unreasonable to force a female employee to choose between terminating a pregnancy and losing a job,'' said Grimes, the Roanoke employee's lawyer. ``I think people assumed the law was further along in Virginia.''
Said Smith: ``I was very glad to see Judge Curran recognize that a woman has a right to have a child. He's protecting my rights as a mother and my child's rights, that she has a right to be born.'' ILLUSTRATION: Color photo
D. KEVIN ELLIOTT/The Virginian-Pilot
Cheryl A. Smith, the plaintiff in the Newport News case, was fired
in December 1994 from the film company, Cinebar Productions, which
makes documentaries for nonprofit museums and arts groups. She was
fired about halfway through her pregnancy, just four days before
Christmas. Smith says her boss, Barbara Bottom Forst, found out
about the pregnancy at a company Christmas party and made a public
scene.
Photo
D. KEVIN ELLIOTT/The Virginian-Pilot
Cheryl A. Smith and her attorney, Thomas F. Hennessy of Chesapeake,
will take to court later this year Smith's pregnancy discrimination
case against Barbara Bottom Forst and her companies, Cinebar
Productions and Chloe Productions.
ORIGIN OF PREGNANCY DISCRIMINATION ACT
It's been 22 years since the landmark federal case on pregnancy
discrimination.
Coincidentally, it is a mirror of the current debate in
Virginia.
That case, too, came from Virginia. It involved employees at a
General Electric plant in Salem who were pregnant in 1971 and 1972.
At the time, there was no federal law on pregnancy
discrimination. But the women sued GE under the Civil Rights Act of
1964, claiming that the company's refusal to provide disability
benefits for time lost to pregnancy and childbirth was sex
discrimination.
The U.S. Supreme Court rejected that claim. ``It is true that
only women can become pregnant,'' Justice William Rehnquist wrote in
1974, but denying benefits to pregnant women is not the same as sex
discrimination.
Apparently in response to this case, Congress enacted the
Pregnancy Discrimination Act of 1978. It bans discrimination ``on
the basis of pregnancy, childbirth or related medical conditions.''
It applies only to companies with 15 employees or more.
KEYWORDS: LAWSUITS DISCRIMINATION PREGNANCY by CNB