Seventh Circuit: Employer’s Shifting Explanations for Termination Suggest Pregnancy Discrimination

Employers take heed: in a decision issued earlier this week, the Seventh Circuit Court of Appeals found that an employer’s varying explanations for terminating a pregnant employee indicated possible discrimination, even though the multiple explanations given were only slightly different. The case serves as a reminder that, when terminating an employee, absolute consistency is critical. By providing multiple reasons for a disciplinary decision — even multiple reasons that are almost the same — an employer would needlessly expose itself to discrimination claims.

The case in question, Hitchcock v. Angel Corps, Inc., No. 12-3515 (7th Cir. June 11, 2013), involved a homecare worker who announced to her employer that she was pregnant. Her supervisor subsequently began increasing her workload and questioning her ability to work as a mother. During that ongoing situation, the employee was involved in a bizarre home visit: when the employee arrived at the home, the patient’s son would not let her see the patient other than from a distance. The employee left the home, and it was later discovered that the patient had been deceased for several days at the time of the employee’s visit. She was terminated shortly thereafter and filed a claim alleging pregnancy discrimination.

The employer moved for summary judgment, claiming that the incident involving the deceased patient was the cause of the employee’s termination. The problem for the employer, however, was that its representatives had provided four slightly different explanations for its decision to terminate the employee: (a) that the employee had completed an examination on a deceased client, (b) that the employee’s actions “compromised” this deceased client’s “health and safety”; (c) that the employee’s actions would have compromised any client’s health and safety; and (d) that the employee performed a “deficient” assessment on a client “who had already passed away.”

The district court judge, finding that all of these reasons were reasonably similar, held that no reasonable jury could find that the employer's reasons were pretextual.  But a panel of judges from the Seventh Circuit disagreed. “We find these shifting explanations to be sufficiently inconsistent or otherwise suspect,” the panel wrote, “to create a reasonable inference that they do not reflect the real reason for [the employee’s] firing.” The judges specifically noted that the employer's reasons — even though they all related to the same incident — were not exactly the same and, in some cases, were arguably inconsistent. The panel observed that the employer, “by piling on additional ever-evolving justifications,” could lead a juror “to wonder whether [it] can ever get its story straight.” The employer’s “many explanations for [the] termination were shifting, inconsistent, facially implausible, or all of the above,” the judges held, and, as a result, “a reasonable jury could conclude that [the] explanations were lies, and that [the employee] was fired because she was pregnant.”

This case should remind employers of the importance of identifying, documenting, and communicating consistent and uniform explanations for their employment decisions. Although the Seventh Circuit did not establish any new legal standards in this case, it clearly communicated the level of scrutiny that it and other courts may use; in other words, that “almost” is not good enough when it comes to explaining disciplinary decisions. A lack of complete consistency can give rise to suspicions of pretext, and therefore, to costly litigation.