Happy new year, everybody.

During the holidays, a federal judge in Wisconsin ruled that an employee’s pregnancy discrimination claim will go to a jury.

The plaintiff (we’ll call her “Katy”) was a vice president of operations and had been with the employer in that and other capacities for 20 years. Apparently she got good reviews, promotion to VP, an incentive bonus, and all was swell.

In April 2019, Katy began in vitro fertilization treatment that failed. She let the Chief Executive Officer (we’ll call him “Biff”) know about it. She apparently had another IVF procedure that same year. That also failed. Biff seems to have been supportive, and made some accommodations to her during this time.

Then, in December 2019, Katy decided to give the IVF a third go. She told Biff that this time, she and her husband were going to use an egg donor and “that she would be undergoing another procedure in January 2020.”

Two members of Katy's work team were pregnant. Sometime after Katy told Biff that she was giving IVF a third try, Biff visited Katy’s office suite and, apparently after looking at the two pregnant women and Katy, said he was “going to have to change the water in here.” Not long afterward, at a meeting that Katy attended, Biff told the attendees, “No one else on [Katy’s] team is allowed to get pregnant.”

Biff admitted that he made both comments.

That was my reaction, anyway. Except that there is no indication from the court’s decision (Judge Pamela Pepper, an Obama appointee) that he even claimed he'd been teasing. I'm still going to give him the benefit of the doubt.

Of course, a couple of quips like this might not be that big a deal in themselves. But if those two quips were the whole story, I’d have nothing to blog about.

In late January 2020, Katy was ready to start that third round of IVF treatments. She told Biff that she would be having a “procedure” the following day. Based on the court’s decision, it looks like Biff knew that this meant an IVF procedure.

Here’s where things get fishy.

Right after the January conversation, the other VP of Operations (we’ll call him “Henry”) said that he'd been receiving a lot of complaints about Katy. The complaints, in essence, were that Katy’s in-person presence left something to be desired and that she missed Board meetings, all of which hurt her effectiveness as a leader. Legitimate concerns if true, but it wasn’t like she was embezzling or sexually harassing anybody. And some of the times she missed meetings, it was for what seemed to be legitimate reasons – she was sick or had an appointment. In one case, she was reportedly out because her grandma died. The Human Resources Director got details of the complaints from Henry, documented it all, and shared it all with Biff.

There was no indication from Judge Pepper’s decision that Biff, Henry, HR, or anyone else followed up with Katy to give her a chance to give her side of the story. Instead, Biff just went ahead and fired her. The firing took place about two weeks after Katy had told Biff that she was going out for the IVF procedure.

Judge Pepper specifically notes, “At no time prior to the plaintiff’s termination did [Biff] tell the plaintiff that her performance was unsatisfactory and needed improvement or that she was at risk for termination.”

This all happened before the Pregnant Workers Fairness Act (which requires employers to make reasonable accommodation for pregnancy and pregnancy-related conditions) became law, so Katy sued for pregnancy discrimination under Title VII. The employer asked the court to dismiss the case because (1) Biff’s quips about pregnancy were just “stray remarks” that didn’t amount to anything and Katy had never even complained about them, and (2) Katy’s lousy performance justified her termination.

The “stray remarks” legal doctrine is that offensive things said by coworkers are not necessarily considered to be evidence of discrimination by the employer in a particular case. The courts generally consider whether the person who made the comment was a decisionmaker or someone who influenced the decisionmaker, and whether the remark was made near the time of the adverse employment action. In this case, the answers to these two questions were "heck yes" and "heck yes."

On the “stray remarks” part, the court found that because the quips were made by Biff, who was the CEO and also the person who made the decision to fire Katy, and because Katy was fired two months later, the quips were not inconsequential "stray remarks." They could be considered by the court and by a jury as evidence that Biff had an issue with pregnant employees.

Lesson for supervisors and managers: Even if you’re kidding, never make comments like this in front of your employees. If you have to make a negative employment decision later, your “jokes” will come back to bite you.

Then there was Katy's termination based on her allegedly lousy performance. The timing was certainly suspicious. It almost sounded like Biff got together with Henry after learning about IVF #3 and asked him to dig up some dirt on Katy.

Even if that isn’t what happened, and even if Katy really did need to have more – and a more reliable – in-person presence to be effective, this did not strike me as ground for termination. At least, not without some warning and an opportunity to improve.

Another thing sunk this employer’s bid at summary judgment. Katy had asked for the specific reasons for her termination. After all, this was an employee who'd had good reviews, been promoted to VP, and had received an annual incentive bonus only a month earlier. But all Biff told her was “that her termination was due to her inability to conduct herself ‘at the commensurate level of vice president of the organization.’” He refused to provide her with any more information, according to Judge Pepper. On the other hand, when Katy’s attorney took Biff’s deposition in the lawsuit, Biff was a fount of specifics about Katy’s alleged shortcomings. (Even the details didn’t strike me as termination-without-counseling/coaching/warning-worthy.)

Biff’s refusal to provide details to Katy at the time of her termination, followed by the very specific information he provided when he got sued, made the whole thing look even fishier to Judge Pepper.

Judge Pepper's decision is bad news for this employer, but it has some good lessons for the rest of us.

FIRST, what I said a few minutes ago about making snide remarks about pregnancy, even in jest.

SECOND, as I have mentioned on this blog before, the "pregnancy" in "pregnancy discrimination" includes much more than the nine months of an uncomplicated pregnancy. It also includes efforts to get pregnant (including IVF treatments), efforts to avoid or terminate a pregnancy, miscarriages, stillbirths, complications, lactation, and more.

THIRD, if the Pregnant Workers Fairness Act had been in effect at the time, Katy might have had a valid claim. Assuming some of her off-site time and missed meetings were related to her IVF treatments, she could have argued that the employer was required to accommodate her rather than firing her.

MY USUAL SUMMARY JUDGMENT DISCLAIMER: The employer lost this round, but that doesn't mean it will lose the case. Summary judgment would have resulted in dismissal of the lawsuit without a trial, which employers want because the legal fees are much more reasonable if the case ends at that stage. Also, the defendants don't have to worry about what individual jurors may do. But it's still possible that, after a full-blown jury trial, this employer will win.