Pregnant pause: NC Court skirts childbearing omission from sex discrimination law.

Here’s another reason to vote: Those guys in the North Carolina General Assembly have the power to decide if a woman can be fired for being pregnant—and so far they’ve decided fire away.

To this fact, I ask: Is this the 21^st Century or not?

Buried deep within a new opinion of the North Carolina Court of Appeals, the answer is an optimistic maybe.

In Edwards v Strata Solar, LLC, a female employee alleged her miscarriage prompted subsequent medical emergencies requiring a short period of leave and need to work from home, all spanning about two weeks.  Her lawsuit alleged that when she returned, she was forced to provide medical records justifying her absence, though men were not required to do that when they got ill, and being the only woman in her division she answered to a male boss who was skeptical of her absence.  He told her she had “work to do” to repair her relationship with the company’s CEO.

Less than a month later, she contends, she was fired for not being “trustworthy” or a “team player,” despite earlier positive performance reviews.

But employment is “at will” in North Carolina, meaning that generally an employee can be fired for any reason or no reason.  An exception is when the termination violates a public policy of the state.  Discrimination based on “sex” is against “public policy,” which the General Assembly defines by statute.

Edwards’ lawsuit alleged several theories of wrongful termination, including that she was fired because of her pregnancy, which is obviously a gender-specific condition, a disability arising from doctors’ orders due to her miscarriage, and her sex.

A trial judge dismissed her case.

This week, the Court of Appeals agreed with the trial judge that termination because of pregnancy is not against public policy because the General Assembly hasn’t included pregnancy on its list of protected classes.  In fact, lawmakers have rejected legislation that specifically would have protected women from being fired because of their pregnancies.

The Court of Appeals also rejected the disability theory, holding that being fired because of a disability is on the General Assembly’s list of no-nos, but Edwards’ complications from her miscarriage were not serious enough and there was no allegation the employer knew she suffered ongoing physical or mental impairment when it fired her.

On the bright side for Edwards, and perhaps women in similar circumstances, the Court decided she could proceed on her theory of wrongful termination because of her sex, generally speaking, in large part on the grounds that she alleged her termination was because of “a serious medical episode particular to her sex.”

So what’s the difference between ruling that termination because of pregnancy is allowed but termination because of a gender-specific medical condition that happens to arise from pregnancy is not? 

The Court explained: “Defendant is correct that the General Assembly excluded a pregnancy-specific discrimination claim from its employment statutes, but this exclusion does not thereby extinguish all potentially litigable sex discrimination claims by women whose complaints plead some facts related to childbearing…. Workplace sex discrimination occurs and gives rise to a legitimate claim for relief, as our General Assembly intended. A plaintiff is not foreclosed from the benefit of inferences that may be drawn regarding allegations of sex discrimination, because as here, she also includes allegations regarding her pregnancy.”

So, the General Assembly refused to protect a gender-specific condition explicitly, but the Court of Appeals concludes that protection may be implied as an artifact of “sex” and a basis for liability. 

The way this decision was written seems to open doors for arguments about other gender-specific medical situations that could be alleged as a factual basis for wrongful termination claims.  For now, anyway.  The male-dominated General Assembly or the slightly testosterone imbalanced Supreme Court could have the last word.

But for the record, the unanimous Court of Appeals panel was composed of two men and one woman.

There may be hope for mankind after all.