Photo thanks to via flickr

Photo thanks to via flickr

Update (April 7, 2017): “Discrimination” has become a pejorative term even though it is not necessarily pejorative. Few would object to discrimination that is, “distinguishing between” or “differentiating”, a Granny Smith and a Honeycrisp apple. Someone who has “discriminating taste” in tea (or wine or music or whatever) certainly is not considered “guilty” of discrimination.

So, for unlawful discrimination, must one be “differentiating” or “distinguishing between people” with some kind of hostility or animus? Could there be “innocent” discrimination based on sex, gender, race, etc.?

This week, the Minnesota Supreme Court decision in the LaPoint case (covered below) was introduced in the Rumble case (previously covered here). LaPoint involved a claim of discrimination based on pregnancy. Rumble involves a claim of discrimination based on transgender status. Apparently, there is are questions of whether “animus” or hostility is a required showing under the Human Rights Act. Also apparently at issue in Rumble: social science expert evidence on the somewhat controversial concept of implicit bias. As we’ve previously noted, Rumble is cutting edge litigation getting national attention. We’re lucky to have the likes of U.S. District Court Judge Susan R. Nelson (D. Minn.) grappling with these difficult issues.

[Ed. note (post-publication update): Here is a defendant’s response to Plaintiff Rumble’s points about the applicability of holding in LaPoint to the Rumble case.]

Original post (December 8, 2015) (under headline: “Pregnant?! Due 10/13!”): It is ironic that Dr. Angela Ross D.M.D. (a dentist), owner of Family Orthodontics, has been tagged with discrimination based on pregnancy. It is ironic, but it is not surprising. Dr. Ross offered Ms. Nicole LaPoint a job at Family Orthodontics, but when Dr. Ross found out that Ms. LaPoint was expecting a child, Dr. Ross documented her surprise and her disappointment (“Pregnant?! Due 10/13!”) and Dr. Ross then promptly revoked the job offer to Ms. LaPoint.

The only thing that is surprising about the case is that Judge Regina M. Chu of the Hennepin County District Court, ruled in favor of Dr. Ross, requiring an appeal and a reversal of the district court decision. The district court found that the employer’s decision was motivated by Ms. LaPoint’s failure to disclose her pregnancy at the interview and that a 12-week leave would be difficult for the employer.

It is hard to believe there could ever be a more open-and-shut case of discrimination based on pregnancy. As the Court of Appeals found, “Here, there is extensive evidence in the record that Family Orthodontics discriminated against LaPoint on the basis of her pregnancy in a purposeful, intentional, and overt manner.”

We can be sympathetic to small businesses who rely on every employee making it into work regularly. Maternity leave can impose a heavy burden on small businesses. But that does not excuse adherence to anti-discrimination laws.

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