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THE NATION

Small Firms Elude Suits for Bias in Conn. Ruling

July 14, 2002|JOHN J. GOLDMAN | TIMES STAFF WRITER

NEW YORK — In April 1997, Nicole Thibodeau went to work as a secretary and receptionist at a small architectural firm in Chester, Conn. Just before Christmas, she told her employers she was pregnant. Four months later, she was fired.

"It was a Friday, 15 minutes before the end of the day. I had no warning at all," she recalled.

"I was so upset. I was 7 1/2 months pregnant. It was so overwhelming."

After the birth of her son, Thibodeau hired a lawyer, claiming she was wrongfully terminated because of her pregnancy.

Last month, by a 3-2 vote, the Connecticut Supreme Court ruled against Thibodeau, upholding the right of companies with fewer than three employees to fire a pregnant woman. On Friday, lawyers for Thibodeau filed papers asking all seven justices on the court to reconsider the case, which has focused attention on little-known exceptions to legal safeguards many workers take for granted.

Federal anti-discrimination law protects workers at companies with more than 15 employees. But more than 30 states go further, affording protections to workers at even smaller firms. Connecticut provides remedies for workers at companies with three or more employees. According to the Census Bureau, 2.7 million people work for businesses with fewer than five employees.

The Connecticut judges based their finding on a law passed in 1947 and significantly amended in 1967 that excludes tiny businesses from suits alleging sexual or pregnancy discrimination.

"The Legislature did not wish to subject this state's smallest employers to the significant burdens, financial and otherwise, associated with the defense of employment discrimination claims," Justice Richard N. Palmer wrote.

"When the Legislature expressly has chosen to say this protection applies when you work for a certain size firm, there is a real question whether a court should go beyond what the Legislature has done," said Christine Jolls, a professor at Harvard Law School and an employment law scholar.

"On the other hand, obviously morally, we do think discrimination is wrong, and we don't think the moral wrongness goes away because you are working for a small firm that is exempt."

"It is a genuinely hard question," she added.

In California, anti-discrimination law applies only to firms with five or more employees, but some lawyers said it is still not clear whether a suit similar to Thibodeau's could be brought successfully against an exempt company.

"A worker may argue that ... the state's anti-discrimination statute and the California constitution suggest that such conduct would violate the state's public policy," said Joseph Beachboard, a partner with the law firm of Ogletree Deakins in Los Angeles and editor of the California Employment Law Letter. "The question is, will the courts expand on the statute and broaden the prohibition of this type of discrimination to include smaller employers."

Alleging unlawful discharge, Thibodeau's lawyers sued Design Group One Architects, charging that her bosses illegally discriminated against her on the basis of gender.

"Obviously, only a woman can get pregnant," said Elaine Rubinson, a lawyer for Thibodeau. "It is such an important right women have.... It is a major, major issue."

She contended that the ruling gives small employers "unfettered power to discriminate, sexually harass and discriminate not just upon gender, but upon race."

Erin Boggs, a lawyer representing the Connecticut Civil Liberties Union, which filed a brief on Thibodeau's behalf, said: "This isn't just a Connecticut case. This is an issue all around the country."

Thibodeau, a 23-year-old single mother, had a difficult pregnancy requiring extra medical appointments, which caused her to leave her job early at times. She and her lawyer said she stayed late other days to make up the work.

Her doctors worried she would give birth to a child with Down's syndrome, a genetic abnormality that causes mental retardation. The concern proved to be correct.

Thibodeau's lawyers charged in their complaint that she was highly praised in an evaluation three months after joining the firm and received a raise.

But after she told her bosses she was pregnant, the lawyers said the firm's principals suddenly began to criticize her performance. One became "visibly angry" when Thibodeau told him she needed to leave work earlier than usual a few times because of medical tests, according to her complaint.

Lawyers for the architectural firm countered that pregnancy wasn't the reason for Thibodeau's dismissal.

"One of the things that tends to get lost in the public discussion is, Design Group One adamantly denies that she was terminated because of her pregnancy. It was because of performance issues," said Michael D. O'Connell, a lawyer for the architects.

The differing views were never decided by a jury. In March 2000, a trial court dismissed the case, ruling that the Connecticut law prohibiting employment discrimination because of pregnancy applies only to companies with three or more workers.

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