Employment Law

Timing Is Everything—and Sometimes Bad Timing Can Be Costly

English mentalist Tony Corinda once said, “Good timing is invisible. Bad timing sticks out a mile.”maternity

A federal judge in New Orleans recently rejected an employer’s request to dismiss its former employee’s pregnancy discrimination case. The court’s decision rested in part on the allegation that the employer fired her less than a week after she gave notice she was pregnant. While it still has the opportunity to prove its defense to the pregnancy discrimination claim, that means more litigation, more legal fees, and potentially even putting the case in the hands of a jury.

Bad Timing Allegations Enough to Move Forward

The employee was a room attendant at a hotel for almost 6 months before she was promoted to a supervisory position. According to her account of what happened, “moments after being promoted,” she informed management that she was pregnant. Six days after her promotion (and her pregnancy announcement), she was fired, allegedly because of her pregnancy. The employee filed suit, asserting a claim of pregnancy discrimination in violation of Title VII, as amended by the Pregnancy Discrimination Act (PDA) of 1978.

Early in the case, before depositions or other discovery (pretrial exchange of evidence), the employer asked the court to dismiss her claim, arguing that she hadn’t actually been fired. However, the court declined to consider the evidence submitted by the employer because the case was in an early stage and there hadn’t been ample time to conduct discovery.

Under the legal standard that applies to such an early request to dismiss, the court relied only on the employee’s allegations and found that she had alleged enough facts to establish a plausible claim. The court noted that she “alleged that a mere six-day period separated the moment [the employers] learned of her pregnancy and the moment she was terminated . . . [and that] reasonably allows the court to at least infer that the termination was causally connected to [her] pregnancy.” Kiyoko Rubio v. Hyatt Corporation, et. al., No. 17-07833 (E.D.La., November 8, 2017).

Why Timing Should Be on Your Radar

Bad timing really does stick out a mile. Though it’s unknown how this case will ultimately turn out—and the employer may even ultimately prevail—you should take heed that timing can be a critical factor courts consider in discrimination and retaliation cases of all types, not just pregnancy discrimination cases.

Be aware of timing when taking adverse employment actions against employees protected under Title VII or any other federal or state antidiscrimination laws, and ensure that before pulling the trigger, you have sufficiently and properly documented any performance or other issues supporting your decision so you’re more likely to succeed in defending such actions. Know that very close timing between an adverse employment action and an employee’s exercise of a legally protected right or disclosure of protected status, such as pregnancy, may prevent a quick dismissal of a lawsuit and prove costly to defend. You should carefully consider all facts and circumstances before making a termination or other adverse employment decision.

The mere fact that an employee has engaged in protected activity or disclosed a protected status in close proximity to such a decision doesn’t mean you can’t proceed with the decision. However, it should prompt greater scrutiny of the reason or reasons for the decision, which should be completely independent of and unconnected to any protected activity or status.

The reasons for the adverse employment decision should be consistent with your policies and practices, should be taken only if all required rules and procedures have been followed, and should pass the smell test. Shooting a fly with an elephant gun and swatting an elephant with a flyswatter never look right to a jury, so avoid taking an unusual, unprecedented, or inconsistent action that can’t be reasonably or logically explained.

And by all means, seek advice from your employment lawyer before taking any action when there’s close proximity between some protected conduct and the action. It could make all the difference.

Christine M. White is a partner in Jones Walker’s Labor and Employment practice group, and contributor to Louisiana Employment Law Letter. She can be reached at cwhite@joneswalker.com.