As the joke goes, it is impossible to be almost pregnant. You either are or you are not; there is no middle ground.
For a time, the law in the Eighth Circuit Court of Appeals recognized this truism, creating an anomaly in the law: women were protected from discrimination under Title VII and the Pregnancy Discrimination Act (PDA) during the course of the roughly nine months of pregnancy, but after the birth of their child, they had no such protection. They were no longer pregnant, and since there is no middle ground in such matters, they no longer had the protections of the law.
While this may seem logical on its face, the result could be absurd. Arguably, an employer could discriminate against a new mother after birth with complete impunity. The employer simply needed to wait until the new mother returned from leave to avoid the reach of these discrimination laws. Of course, there may be other issues, such as retaliation for taking a protected leave under the Family Medical Leave Act (FMLA) or a state equivalent. However, because child care is something that could just as easily be done by a man or a woman, a mother or a parent of a child born naturally or adopted, caring for a young child was not protected.1
This troublesome logic was articulated in Piantanida v. Wyman Center, Inc., 116 F.3d 340 (8th Cir. 1997). Diana Piantanida had been demoted during her maternity leave. 116 F.3d at 340. She alleged, among other things, that her new supervisor told her she was being given a position for a "new mom to handle." But the plaintiff admitted in her deposition that this discrimination was not related to her pregnancy, but rather to her status as a "new mother." The Eighth Circuit ruled that her claim was not cognizable under the PDA, since she was no longer pregnant when she experienced the adverse job action. The court reasoned further that the decision to care for a child was a "social role chosen by all new parents who make the decision to raise a child." Id. at 342. This social role "includes women who become mothers through adoption rather than child birth, and men who become fathers through adoption and biology." Thus, while the case was decided only under the PDA, the reasoning had application under Title VII as well. The role of being a new mother was no different than being a new father, or being an adoptive mother or father, according to the court. Under this logic any woman was fair game for discrimination the day she returned to work from her maternity leave. After all, she was no longer pregnant.
A 2003 decision of the Eighth Circuit Court of Appeals in Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003), appears to change all of that, not only diminishing the precedential effect of the Piantanida case, but also confirming the existence of an impressive array of remedies for working mothers in Minnesota and the Eighth Circuit.
Walsh v. NCS
On Oct. 30, 1998, Shireen Walsh resigned from National Computer Systems (NCS) and soon thereafter accepted a job that paid less. During her five years at NCS, Walsh had received multiple promotions, regular raises, and consistently favorable performance evaluations. She was, in the words of her supervisor, an excellent employee and a "top performer."
Walsh was pregnant when Barbara Mickelson became her manager on Mar. 1, 1997. Like her coworkers, Walsh was an exempt employee. Her fellow exempt employees were allowed to leave during the workday for personal errands like mowing the lawn, getting a haircut, or even watching Oprah Winfrey on television. Their time was their own, as long as they finished their work. But Walsh soon discovered that her pregnancy was unpopular with her new boss and that she would not be given the same privileges as her coworkers. During her pregnancy, Mickelson required Walsh to provide advanced notice of any visit to the doctor’s office as well as documentation of the appointment afterwards.
Walsh suffered from borderline gestational diabetes and went into labor prematurely. She had to take an early bed rest and extended leave under the Family Medical Leave Act. Walsh gave birth to her first child, Garrett, on May 9, and returned from pregnancy leave on Aug. 4, 1997. After Walsh returned from her pregnancy leave in August, Mickelson began treating her even worse. In fact, the day she returned, Mickelson told her to put away pictures of her newborn son and get back to work.
The harsh treatment extended to Walsh’s time away from the office, which was also closely scrutinized. Her son, Garrett, was very sick as an infant. He suffered from violent allergic reactions, fevers as high as 104 degrees, and repeated ear infections that resulted in a permanent hearing impairment. Because Walsh’s husband worked on the road for UPS, she was the one who had to drop everything and bring Garrett to a doctor when necessary.
Walsh was criticized every time she was away from the office, even for a few minutes, and was required to make up every minute of lost time. Mickelson yelled at Walsh to find a pediatrician who was open after hours, and referred to Garrett as "the sickling." Walsh had signs placed on her desk stating "Out, Sick Child" when she was away from the office to take Garrett to a physician. When Walsh fainted at work from the work-related stress, Mickelson warned her that she "better not be pregnant again."2
Walsh repeatedly complained to the Human Resources Department about this unfair treatment. Others noticed that she was being treated differently as well, but nothing was done.3 By October 1998, 18 months after her child’s birth, Walsh could not take it anymore. She left her job. Later Walsh would file a charge of discrimination against NCS claiming that she was subject to a hostile environment based upon her sex, and the gender-based condition of pregnancy.
NCS contended that it had policies in place requiring prompt investigations when it learned of the claims of a hostile environment. NCS representatives readily admitted that Walsh’s complaints might constitute harassment in violation of company policy, but contended that she had never made any complaints about pregnancy-related or gender-based harassment in the workplace. Walsh, on the other hand, contended that she had complained on multiple occasions to both her supervisor and the Human Resources Department about the discriminatory treatment.
Walsh soon found another job that paid her as much as she had earned at NCS. Her total past and future wage loss at the time of trial was $11,002. Although she made a claim for emotional distress, she did not seek treatment for this, and her emotional distress claim was based solely on the testimony of herself, her coworkers, and her mother. By most common measures, this was a very small case with a large number of difficult issues.
First among these difficult issues was the ominous precedent created by the Piantanida case. If that precedent were extended to Walsh, she would arguably have no claim for discrimination no matter how poorly she was treated after she returned to work. Secondly, while she might find protection under the FMLA, there is no recovery under that act for emotional distress or punitive damages, and Walsh’s economic loss was too small to pursue a viable claim. Although Minnesota law provided for protected leave under the Minnesota Parenting Leave Act (MPLA), Walsh took more than the protected six weeks under that act. See M.S.A. § 181.941, subd. 1 (2004). Furthermore, there were no appellate cases interpreting that act, making the claim even more difficult.
If that was not daunting enough, there was the case of Duncan v. General Motors Corp., 300 F.3d 928 (8th Cir. 2002), where the Eighth Circuit Court of Appeals had appeared to set a high bar for hostile environment claims. In that case, the court of appeals reversed a substantial jury verdict for the plaintiff in a hostile environment claim, finding that a manager’s actions were "boorish, chauvinistic, and decidedly immature," but still not "sufficiently severe or pervasive so as to alter the conditions of her employment" and create a hostile work environment. 300 F.3d at 935.
Consequentially, the issues in Walsh’s case were well drawn:
1) Was Walsh able to overcome the Piantanida precedent and state a claim for gender or pregnancy discrimination, after the birth of her son?
2) Given the meager amount of wage loss that Walsh had suffered, were the damages that could be obtained somehow able to justify the ordeal of litigation?
3) Finally, were Walsh’s facts—the derogatory comments about her son and her pregnancy, the close monitoring of her time away from work, and the angry interaction she had with her supervisor—sufficient to state a hostile work environment after Duncan?
After largely surviving the normal onslaught of summary judgment motions, the case went to trial on interrelated theories of gender discrimination in violation of the MHRA, Title VII, retaliation in violation of the FMLA, and the MPLA, and retaliation for having complained of discrimination.
The Jury Verdict
The case was tried to a jury in January 2002. Walsh sought wage loss, emotional distress, and punitive damages under Title VII.
The jury found that Walsh had been discriminated against and retaliated against in violation of Title VII, the MHRA, the MPLA, and the FMLA. The jury also found that Walsh had been constructively discharged, and awarded her $11,000 in wage loss, $45,000 in emotional distress damages, and $382,145.40 in punitive damages.4
The Conundrum of Damages
The jury verdict raised a number of provocative damage questions. For example, the FMLA does not permit recovery for emotional distress, but a person can receive liquidated damages, doubling the wage loss recovered. 29 U.S.C. § 2617(a)(1)(iii) (2004).5 Title VII of the Civil Rights Act under 42 U.S.C. § 2000E permits the recovery of compensatory and punitive damages but the recovery is capped at $300,000. See 42 U.S.C. § 1981a(b)(1). The Minnesota Human Rights Act, on the other hand, permits the recovery of uncapped compensatory damages, and treble the "actual" damages, but limits punitive damages to $8,500. Minn. Stat. §§ 363A.33, subd. 6 (2004); 363A.29, subd. 4 (2004). Each of these claims permits the recovery of costs and attorney’s fees.6
After the verdict, the plaintiff made a motion for the recovery of treble damages under the applicable provisions of the MHRA. See § 363A.29, subd. 4. The trial court judge granted the motion in part, doubling the actual damages, including the award for emotional distress, under the MHRA,7 raising the total damage award under the act to approximately $112,000. The trial court also doubled the wage loss recovery of $11,000 under the liquidated damage provisions of the FMLA.8 In addition, the district court limited the damage recovery under Title VII to the statutory cap, reducing the punitive damage award by $82,000.9
The central damage question was whether the plaintiff must choose a remedy. In other words, must the plaintiff choose the punitive damages under Title VII, the liquidated damages under the FMLA, or the double damages under the MHRA?10 Or, could the plaintiff choose the best feature of each remedial statute, adding the wage loss, liquidated damages, emotional distress, double damages under the MHRA, and punitive damages under Title VII, along with an award of attorney’s fees and costs, together?
Thus, the Eighth Circuit would address some important issues in the Walsh case, including (1) the right of a woman once but no longer pregnant to contend that the lingering effects of her leave, coupled with the negative reaction to time away from work to care for her young child, created an actionable claim for gender discrimination under the theory of a hostile environment; (2) the sufficiency of Walsh’s proof under Duncan; as well as (3) the ability to recover under all or only one of the multiple statutory theories that may come into play for a woman in the shoes of Shireen Walsh.
The Court of Appeals Opinion
Little did Shireen Walsh know that she would be at the forefront of a new national debate. Working mothers and their particular work issues and problems were a square peg in the round hole of discrimination laws throughout the country. This had suddenly become a popular issue with the media and in legal circles alike. The Trial Lawyers for Public Justice and the Program on Gender, Work and Family at American University in Washington, D.C., sponsored a program on legal issues for working mothers, and featured the Walsh case as a principal part of their seminar. In the meantime, the national media became interested in Walsh’s story, featuring her on the CBS Nightly News segment Eye On America.11 She was also featured locally on KSTP’s Eyewitness News.12 The recurring discussion surrounded women with small children; were they protected from discrimination, and, if so, how?
The Trial Lawyers for Public Justice also submitted an amicus brief in support of the plaintiff on appeal. The amicus brief argued for a "sex-plus" theory of discrimination; that is, Walsh should be considered in a protected class as a woman "plus" having a sick child.13 The argument for recognition of this protected status is the assumptive role of women as principal caregivers in the raising of young children, and the need to protect them from the stereotypical assumption that they will give less attention to their jobs when their maternal instincts take over.
The Eighth Circuit did not directly address the issue of "sex-plus" discrimination. Walsh at 1160. While acknowledging that Piantanida stood for the proposition that parenthood was not a protected class, the court distinguished Walsh from the earlier precedent. "Potential pregnancy," according to the court, is a medical condition that is sex-related because "only women can become pregnant." Id. (quoting Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996)). Because Walsh was in her childbearing years, and because she was specifically warned not to get "pregnant again," she had a cognizable gender discrimination claim. The court then noted that the verdict was amply supported by evidence of the supervisor’s discriminatory remarks, including stating about another coworker’s pregnancy "I suppose you’ll be next," "I suppose there’ll be another little Garrett running around," and "You better not be pregnant again."
The ruling under Walsh establishes the limits of Piantanida, and holds that a woman is protected against discrimination on the basis of potential pregnancy. The opinion raises the curious question of whether a woman who is unable to become "pregnant again" is afforded the same protection. Nevertheless, the decision is a substantial departure from the logic of Piantanida, protecting working mothers from discrimination in the workplace during the child’s early months or years.14
Hostile Environment as Measured by Duncan v. General Motors
Legal scholars have identified the hostile environment theory as one of the principal theories that can be used to support a working mother’s claim for actionable discrimination.15 The challenge for that theory in the Eighth Circuit involved a recent decision by one panel to reverse a substantial jury verdict for a plaintiff, measuring what appeared to be strong evidence of harassment and finding it wanting as not "severe and pervasive" enough to constitute a hostile environment under the law. Duncan at 934. The Duncan decision has been widely criticized,16 appears to be at odds with traditional notions of appellate deference to a finder of fact,17 and has been disregarded by later panels of the court considering the same issues.18 Nevertheless, the Duncan precedent was a significant obstacle for Walsh on appeal, and was argued vigorously by the defense.
Surprisingly, the Walsh court paid little mind to the kind of analysis featured in Duncan and declined to re-weigh the evidence or second-guess the jury’s determinations of credibility. The court reasoned that, based on the evidence and inferences most favorable to Walsh, reasonable jurors could have found in her favor. Accordingly, they affirmed the verdict. Walsh at 1158 (citing Minneapolis Cmty. Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir. 1991)). The court reiterated that a jury verdict will not be set aside unless there is a "complete absence of probative facts to support the verdict." Id. at 1158 (quoting Brine v. President Riverboat Casino – Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998)).19 While this kind of appellate reasoning hardly seems remarkable, it is a striking departure from the judicial activism that was a part of the Duncan decision. More striking than the logic was the fact that the Walsh court did not even cite Duncan, despite repeated reference to it in the briefs of all the parties and amicus.
The Eighth Circuit Decision on Damages
A number of issues were before the appellate court regarding the amount and allocation of Walsh’s damage award, including the effect of statutory caps and whether the damages were sufficiently supported by the evidence.
Because of the question of caps under Title VII ($300,000) and under the MHRA for punitive damages ($8,500), and the FMLA limitation to wage loss damages, the damages affirmation of Walsh might be considered controversial.20 But the eighth Circuit’s opinion on this issue was not groundbreaking. In Kimsey v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997), Wal-Mart contended that total damages should never exceed $300,000, the Title VII cap, which it argued was the national consensus for the upper limit of awards in employment discrimination cases. This was rejected by the Eighth Circuit, reasoning that "state law cannot be displaced by the Federal law without the clear intent of Congress." Id. See also Liu v. Seagate Technologies, #99-220 (JRT/FLN), 2001 WL 920013 (D.Minn. 2001) (statutory cap in Title VII claims does not apply to the MHRA).
The maximization of damages in discrimination actions is consistent with U.S. Supreme Court interpretation of the purpose of Title VII, which was "designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974). States, as well as the federal government, are free to adopt laws that give victims of discrimination additional remedies. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 67 (1980). The practice of allowing plaintiffs to recover benefits under a "cafeteria plan" has been adopted in an increasing number of other circuits. See Gagliardo v. Connaught Labs., Inc., 311 F.3d 565 (3d Cir. 2002); Hall v. Consol. Freightways Corp., 337 F.3d 669, 679-80 (6th Cir. 2003); Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 509-510 (9th Cir. 2000); Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336, 1349-1350 (DC Cir. 1999); Funk v. F & K Supply, Inc., 43 F. Supp.2d 205, 225-26 (N.D.N.Y. 1999); Gonzalez v. Bratton, 1147 F.Supp.2d 180, 204 (S.D.N.Y. 2001); Torres v. Caribbean Forms Mfr., 286 F.Supp.2d 209, 218 (D.Puerto Rico 2003).
In Walsh, the Eighth Circuit had no difficulty affirming the damages award as being supported by the evidence, pointing out that "this court made it very clear that where the court submits a single damage question for multiple claims and where the evidence supports the actual damage award on any of the claims the award will not be set aside." Walsh at 1159 (emphasis added), (citing Le Suer Creamery v. Haskon Inc., 660 F.2d 342, 346 n. 7 (8th Cir. 1981)). The court went on to say that the damage awards were "clearly supported by the hostile work environment claim."21 Walsh at 1159.
On the question of punitive damages, NCS made the usual arguments: that the damages were excessive in light of the compensatory damage award and even unconstitutional; and that the evidence was clearly insufficient to support an award of punitive damages.
Interestingly, in affirming the punitive damage awards, the court looked to the fact that NCS’s own policies in place clearly prohibiting the conduct at issue. The court quoted this colloquy between plaintiff’s counsel and the human resources director:
Q. NCS has a policy that it will not discriminate, is that correct?
A. That’s correct.
Q. And not subject people to harassment either, is that right?
A. That’s correct.
Q. Is it your understanding that harassment includes more than sexual harassment, can include harassment based upon gender, for example?
A. That’s correct.
Q. And gender can include such things as pregnancy and the conditions of being a woman, right?
* * * * *
A. Yes, that’s correct.
Q. And so NCS has a policy that it won’t discriminate or harass women on the basis of pregnancy or pregnancy leave, maternity leave, is that correct?
A. That’s correct.
Walsh at 1161 n.8.
The court went on to note that there were 10 different reports from different individuals about treatment of Walsh and other affected employees. Walsh at 1161. NCS had conducted investigations for such things as the high turnover rate in Mickelson’s department, but had never investigated these reports of differential treatment. Id. at 1162. The court held that strict policies that existed only on paper demonstrated "reckless indifference" on the part of NCS toward the numerous allegations of pregnancy discrimination reported by several women, including Walsh. Id. This was true even though Walsh had not "specifically stated to management that Mickelson’s conduct rose to the level of a federal violation." Id. In other words, Walsh had not specifically stated that she believed that she was the victim of discrimination or harassment.
Finally, the court dealt with the contention that the punitive damages were excessive or unconstitutional, taking into consideration the degree of "reprehensibility." Here, the court considered the ratio of compensatory damages to be 3 to 1, and held that this was clearly not "grossly excessive," and commented that "[f]ail[ure] to take action on repeated complaints of mistreatment and misconduct is precisely the type of conduct punitive damage awards are intended to deter." Id. at 1162. Significantly, the court determined the ratio after doubling the compensatory award under Minn. Stat. § 363.071—once again giving Walsh the full benefit of the many statutory damages available to her.
Conclusion
Shireen Walsh’s claims started out with a number of challenges. Those challenges included a small wage loss claim of $11,000, no psychological support for a substantial emotional distress claim, and daunting precedent regarding gender discrimination. Efforts at settlement of the claim proved unavailing because the defendant was confident of a defense verdict or de minimus result.
Instead, through a combination of the remedies available to address discriminatory behavior directed at pregnant women in particular, Shireen Walsh recovered a total sum approximating $700,000 for her claims. She also helped clear the air of the pall cast by Duncan and Piantanida.
Small case, big lessons.