Wednesday, May 16, 2012

Fired for Premarital Sex Versus For Being Careless-It Matters

A recent 11th Circuit Court of Appeals case has some moderately salacious facts, but really sends a lesson about not being careful with how you handle employee counseling sessions, especially when the session might lead to a termination.

The female plaintiff in this case worked at a small, Christian school as a teacher.  She became pregnant when she and her fiancĂ© jumped the gun a little on the wedding night festivities. Within a month of discovering that she was pregnant, they got married.  Two months later, she informed her supervisors, the owners of the school, that she was pregnant and would need maternity leave at the start of the following school year.  During the course of her discussion, she admitted that she was pregnant at the time she was married; the school fired her the following day for engaging in premarital sex, conduct which the school management described as "disobeying the word of God."

The former teacher sued, alleging pregnancy discrimination under Title VII, and state law claims for marital status discrimination and invasion of privacy. The federal judge dismissed the pregnancy discrimination and marital status claims on summary judgment, and the plaintiff appealed up to the 11th Circuit.

The appellate court correctly noted that although premarital sex and premarital pregnancy are closely linked (thank goodness for mandatory sex education courses), it's perfectly permissible to fire someone for engaging in premarital sex, but not for being pregnant. The lower court determined that the plaintiff had no case because she could not show that there was a pregnant comparator in the workforce who did not engage in premarital sex and was terminated, but the appeals court said this was casting the analytical net too narrowly. What the plaintiff had to do was show that there were circumstances indicating that the pregnancy was in fact the real reason for the termination.

This the former teacher was able to do. Specifically, she was able to show that during her interrogation (I can hardly characterize it as an interview), school management made some offhand comments that seemed more concerned with her pregnancy and the associated maternity leave, than with the fact that she was disobedient to the Big Guy. Moreover, at his deposition, one of the owners indicated that there would not be a problem if the plaintiff had only apologized for her pre-marital shenanigans. Unfortunately for him, she apparently had already apologized, thus casting doubt on whether premarital sex was the real reason for the termination.

So the moral of the story here is to not freelance these types of employee interviews, but rather have some type of plan with respect to what you're going to say, and what you're going to do after the interview.   Thinking out loud usually ends up adding nothing to the discussion, but creates plenty of opportunity for problems later on.  I often ask my clients to tell me in a single sentence why they are making the decision.  That typically clarifies the thought process and leads to a better decision.

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