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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11546
Experience:  Licensed Texas General Practice Attorney
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As a manager I am being accused of say something about a pregnant

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As a manager I am being accused of say something about a pregnant woman...meaning I did not allow a pregnant worker to be a part of my consulting team for a new client project because all of the work that would need to be completed for the client would occur when she is out on maternity leave. There was no ill will intended by this decision only keeping the best interest of the new client in mind. I was not informed of this accusation at the time it occurred and have only found out about this issue from my CEO who informally mentioned that I may have said something illegal but provided no details. So now I am meeting with our HR person to get details. What are my rights in this situation? My understanding is that I have a right to know what I am specifically being accused of, who is my accuser and when the incident was reported...is this true? Also, shouldn't I have been notified at of this situation at the time this accusation was made? Its been at least 4 months since the incident occurred, what are my rights for this situation?
Submitted: 1 year ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I am sorry to hear about your situation. Can you tell me if your employer has any specific policies in place regarding these types of investigations?

ScottyMacEsq :

Did you see my follow up question to your issue?

ScottyMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

ScottyMacEsq :

My apologies, but I must assist the other customers that are waiting. Once you respond to my follow up question, I will respond as soon as I can. Please note that I may be assisting other customers or otherwise out of the office (depending when you respond). Thank you.

Customer:

Sorry I had to step away for a few hours from my computer. what kind of policy are you looking for? We have a sexual harassment and non-sexual harassment policy in which it states that an investigation will be conducted with the accuser and with the person being accused, then they will report the results of the investigation to both parties and determine whether disciplinary action should be taken

ScottyMacEsq :

That's pretty much what I was talking about. You see, Massachusetts is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, scheduling and even investigations. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion to conduct such an investigation. There are not any statutory "rights" of the accused in these situations, but written policies, if not followed, could be actionable. So ultimately your rights are what your employer say they are.

ScottyMacEsq :

As for the case that this employee might have, it depends...

ScottyMacEsq :

Basically what would come into play here would be the Pregnancy Discrimination Act (PDA) or Family Medical Leave Act (FMLA). State laws are similar. A claim brought under the PDA is analyzed like any other Title VII discrimination claim. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). Title VII discrimination can be established through either direct or circumstantial evidence. See Wallace , 271 F.3d at 219. The latter is analyzed under the familiar McDonnell-Douglas framework. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination. See Wallace , 271 F.3d at 219. In order to make out a prima facie case of discrimination under Title VII, a plaintiff must show: (1) she was a member of the protected class; (2) she was qualified for the position; (3) she was discharged; and (4) after she was discharged, she was replaced with a person who is not a member of the protected class. Bauer v. Albermarle Corp. , 169 F.3d 962, 966 (5th Cir. 1999). The burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for her termination. See id. This causes the presumption of discrimination to dissipate. See id. The plaintiff then bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated against her because of her protected status. See id

ScottyMacEsq :

Now it's not necessary to show "discharge", but rather an "adverse employment decision".

ScottyMacEsq :

Not having her as part of the team could be such a decision.

ScottyMacEsq :

But if you could show a nondiscriminatory reason for this, then it could be overcome.

ScottyMacEsq :

Basically that means that if you were to treat other, not pregnant employees the same way if there was going to be non-medical leave taken, then she would not have a claim,

ScottyMacEsq :

But you would need to show that anyone taking leave for this period of time, for medical reasons or otherwise (big emphasis on the or otherwise) would be treated exactly the same.

ScottyMacEsq :

It would be good for you to show some consistency, if possible.

ScottyMacEsq :

(that is, if you've had some employee in the past take time off for non-medical, non-pregnancy related issues, and you've treated that employee the same, that would be evidence in your favor)

ScottyMacEsq :

Again, as far as your rights, it's what your employer says they are. You don't have any statutory rights under these laws as the accused. If your employer doesn't have anything in writing, and no contract protects you, your employer could literally fire you without a moments hesitation, and due to the "at will" doctrine there would not be anything that you could do.

ScottyMacEsq :

The fact that your employer does have a policy in place regarding what happens in investigations and what you can expect, that means that these are your rights. There are no more, statutorily, but no less either.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Scott - thank you for your answer. As I mentioned in my first email, I was just made aware of this issue on Tuesday and am meeting with HR at noon today to get the details. There was no intent to harm anyone or anything in making my decision to not have this person on my team for this new client, as a matter of fact she works on at least 6 other clients out of a total of 15 that she will continue to work on. She is taking an extended maternity leave (4 months) during our busiest consulting season of work. I would have made this exact same decision for anyone else taking a non-medical leave too. Our office hasn't has any non-medical leave requests to deal with that stretched beyond a couple of weeks of vacation which is very different from 4 months.

Customer:

I also continued to give her a chance to work on the project with me, but it required plane travel from Boston to San Francisco for which she was not willing to do (I asked her), so I needed someone to come with me to that meeting and it didn't make any sense to introduce her to a client that she couldn't ultimately do any work for for 4 months.

Customer:

Can I email you later this afternoon once I'm able to gather more information about this specific situation? I'm guessing this is what the issue is, but I won't know for sure until my meeting with HR today. Thank you!

ScottyMacEsq :

I understand. If she can't do the work that is required in this position, then it would be difficult to establish the pregnancy discrimination (particularly if you would treat other employees the same)


 

ScottyMacEsq :

Yes, you can follow up later on.

ScottyMacEsq :

I do ask that you rate this answer so it will close out in the meantime.

ScottyMacEsq :

(so I can assist other customers)

ScottyMacEsq :

But after you rate, you can still come back and ask follow up questions, and I will get to them as soon as I can.

Customer:

Great, thank you very much!

ScottyMacEsq :

My pleasure.If there's nothing else for now, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 11546
Experience: Licensed Texas General Practice Attorney
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