Labor & Employment Law Daily No Title VII PDA claim for male employee based on wife’s pregnancy
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Wednesday, October 21, 2020

No Title VII PDA claim for male employee based on wife’s pregnancy

By Joy P. Waltemath, J.D.

The employee alleged that after he complained about comments from his supervisor and coworkers that he “shouldn’t have a kid,” HR told him he “could choose to resign.”

Allegations that an employee of Disney Streaming Services (DSS) suffered discriminatory treatment and was ultimately fired based on his wife’s pregnancy were dismissed by a federal district court in New York, which reasoned that although Title VII makes it unlawful to discriminate against any “individual” because of sex, the Pregnancy Discrimination Act only “protects a pregnant employee, it does not protect an employee whose spouse is pregnant.” The employee similarly failed to state a sex-plus discrimination claim (his male gender plus his wife’s pregnancy), given that his “bald” allegations about more favorably treated pregnant females lacked any details to establish them as similarly situated comparators. His claim under the New York City Human Resources Law also failed, since it too does not protect familial status. Finally, the employee’s allegation that he took paternity leave without incident (although he was fired within months) contradicted his FMLA interference claim, and he neither alleged an FMLA retaliation claim nor facts that suggested his firing was related to his paternity leave (Van Soeren v. Disney Streaming Service dba Bamtech, October 16, 2020, Buchwald, N.).

Hacking his personal computer? According to his complaint, the employee had worked for DSS for almost three years when he was fired “without cause or severance.” He contended that the discriminatory treatment began before his wife became pregnant and that at a time when he and his wife were contemplating pregnancy, various coworkers referenced things that he and his wife had “discussed only at home or view through his at-home internet browser,” suggesting to him that they had hacked into his private computer. However, as the court noted, the employee did not bring any privacy-related claim.

“Shouldn’t have a kid.” He alleged that his coworkers made numerous comments about his future child, commenting that he “shouldn’t have a kid,” stating within hearing distance of the employee, “I don’t know why he [plaintiff] decided to have a kid,” and asking him whether he had a good reason for having a child. At a party attended by coworkers, one of them allegedly said he believed the party was for the employee’s baby because he wanted the baby to be delivered three months early.

Complaints to HR. Although he said he reported these comments to HR, the employee contended that HR was “distant” and “disinterested,” did not disclose its investigation to him nor schedule a meeting to discuss his concerns, but did inform him “that he could choose to resign.” He also said HR disclosed “confidential information” to his supervisor, who then threatened to fire him, refused to correct misrepresentations in his annual review until his HR complaints were retracted, brandished a knife in front of him “in a threatening manner,” and swung a baseball bat directly over his head.

Once his child was born, the employee took two weeks of paternity leave, but when he returned a coworker commented to him about “still birth and improperly developed fetuses.” His supervisor’s boss ultimately fired him within what appeared to be less than two months from his paternity leave, although the precise timing between his return to work and his termination was unclear in the complaint.

Title VII and NYCHRL claims. The court interpreted his claims for pregnancy discrimination as ones for familial status, which is not a protected class under Title VII (or NYCHRL), and thus dismissed those claims. The Pregnancy Discrimination Act clarified that “because of sex” includes “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . .” This means that it protects pregnanct employees, not employees whose spouse is pregnant, reasoned the court. Nor had the employee adequately alleged a sex-plus claim (his gender plus his wife’s pregnancy); the allegations regarding pregnant female employees who were treated better lacked any facts about them as similarly situated comparators.

FMLA claim. Because the employee alleged he took paternity leave without any problem, his FMLA interference claim also was dismissed. Plus, he had made no FMLA retaliation claim, and even if he had, he failed to allege that his termination a few months (or less) after his return from leave “arose in any way from his paternity leave.”

State law claims. The court declined to take supplemental jurisdiction over the employee’s NYSHRL claim, as well as his state tort claims for negligent supervision and intentional infliction of emotional distress.

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