Can a man claim pregnancy discrimination? A man, baby!

Austin Powers, Eric?

Yeah, sorry. I’m all tapped out after yesterday’s fantasy football spectacular.

So, pregnancy-discrimination, eh?

The facts in Estate of Andrew Tyler Pennington v. Southern Motion, Inc. (opinion here) are rather straightforward. Mr. Pennington worked for Southern Motion, Inc. According to the plaintiff, shortly before Mr. Pennington’s employment with Southern Motion began, Mr. Pennington learned that his wife was pregnant and considered a high-risk pregnancy. A few months into his employment, Mr. Pennington took a day off from work to accompany his wife to a “pregnancy-related appointment.” According to the plaintiff, when Mr. Pennington tried to return to work, the company terminated his employment.

The plaintiff sued for “discrimination based on sex and pregnancy” in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The defendant answered the complaint and immediately moved for judgment on the pleadings. Judgment on the pleadings is where the defendant argues that the plaintiff’s complaint discloses that there are no material issues of fact to be resolved and that defendant is entitled to judgment as a matter of law.

Ok, how about sex discrimination?

Southern Motion argued that “Title VII, as amended by the PDA, … simply does not provide a claim based on the pregnancy of an employee’s spouse in the absence of proof that the employee was discriminated against because of his or her sex.”

The plaintiff countered that “discrimination against a male employee because of the pregnancy of his spouse is sex discrimination. Pennington was therefore discriminated against based on his sex when he was terminated because of his wife’s pregnancy.”

So, who wins? You do, of course! You’re reading this awesome blog.

Oh, the Pennington case. Defendant wins. Here’s why:

[I]n order for a male to properly bring a claim of discrimination based on pregnancy, the male must allege that he was discriminated against because of his sex…The discrimination would have to, in this case, be based on Pennington’s association with his pregnant spouse and must have been based on Pennington’s sex. Put differently, the Estate must allege not only that Pennington was terminated because of his partner’s pregnancy but that a female employee would not have been terminated because of her partner’s pregnancy. No such allegations have been made here. Accordingly, construing the complaint in the Estate’s favor, the Court finds the Estate has failed to assert sufficient facts to plausibly suggest that Pennington was treated less favorably than those outside his protected class. The Estate’s claim of sex discrimination, therefore, fails as a matter of law.

So, there you have it! While a pregnancy discrimination claim is untenable, it’s conceivable that a man could plead a sex-based associational-discrimination claim. And, if you think that sounds difficult, it is. According to this court, you’d need to involve a lesbian co-worker and her pregnant spouse.

While I do have a lot of good work-related cocktail-hour stories, I don’t have one involving a man successfully pleading all of those necessary facts.



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