American Journal of Law & Medicine

Select recent court decisions. (Recent Developments In Health Law).

Employment: Court Limits Reach of Pregnancy Discrimination Act--Stout v. Baxter Healthcare Corp., 282 F.3d 856 (5th Cir. 2002).

Managed Care: Health Benefit Plan Administrator Must Cover High-Dose Chemotherapy Treatment--Zervos v. Verizon New York, Inc., 277 F.3d 635 (2d Cir. 2002).

Medicaid: States May Employ "Income-First" Method for Medicaid Eligibility--Wisconsin Department of Health & Family Services v. Blumer, 122 S. Ct. 962 (2002).

Privacy: State Interest in Regulation of Potentially Harmful Drugs Outweighs Individuals' Right to Privacy of Prescription Records--State v. Russo, 790 A.2d 1132 (Conn. 2002).

Employment: Court Limits Reach of Pregnancy Discrimination Act--Stout v. Baxter Healthcare Corp. (1)--The Fifth Circuit held that the defendant did not violate the Pregnancy Discrimination Act (PDA) in firing an employee who missed more than the allowed number of days of work during a probationary period due to a miscarriage. (2) The plaintiff-appellant, Wilma Stout, brought a class action against her former employer, Baxter Healthcare Corp. (Baxter). Stout alleged that her firing was discriminatory under the PDA, (3) that she was fired because of her pregnancy and that Baxter's probationary attendance policy had a disparate impact on pregnant employees. The Fifth Circuit affirmed the District Court for the Northern District of Mississippi's grant of summary judgment to Baxter. (4)

Baxter had a ninety-day probationary period for new employees, and any employee who missed more than three days of work during the ninety-day period was terminated. Baxter provided neither vacation time nor medical leave for its probationary employees; therefore, the three allowable absences included any leave the employees may have had to take for medical reasons. Stout had good performance reviews and perfect attendance during her first two months at Baxter, but in her third month she had a miscarriage that required her to miss two weeks of work. Baxter fired Stout citing her exceeding the allowed number of missed work days during the probationary period. Stout brought suit after securing a right to sue letter from the Equal Employment Opportunity Commission. (5)

The PDA, enacted in 1978 to amend Title VII, expanded the definition of discrimination on the basis of sex to include "pregnancy, childbirth, or related medical conditions." (6) Stout alleged both disparate treatment and disparate impact in her challenge of Baxter's probationary policy for its new employees. Under her disparate treatment claim, Stout alleged Baxter fired her because of her pregnancy; under her disparate impact claim, Stout alleged that, though the policy was facially neutral, it was harsher on pregnant women than on other groups. (7)

The Fifth Circuit quickly disposed of Stout's disparate treatment claim, stating that "all of the evidence in the record indicates" that Stout was fired because of her absenteeism, not because of her pregnancy. (8) The probationary period's attendance policy applied identically to both pregnant and non-pregnant employees, and Stout presented "no evidence she would have been treated differently if her absences had been due to some reason unrelated to pregnancy or if she had been absent the same amount but not pregnant." (9) The court determined that the PDA does not operate to shield protected employees from being terminated because of absence, even if the absence is due to pregnancy, unless absences are overlooked in the case of nonpregnant employees. (10)

To prove a prima facie disparate impact claim, the plaintiff must identify a discriminatory employment practice and establish causation for the disparate impact with statistical evidence. (11) Disparate impact claims involve employment practices that are "facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." (12) Stout identified Baxter's probationary period attendance policy as the discriminatory employment practice, but failed to provide any statistical evidence of its disparate impact. Stout argued that the Fifth Circuit's earlier decision in Garcia v. Woman's Hospital of Texas (13) allowed a woman to prove a disparate impact under the PDA without statistical evidence. (14) In Garcia, the hospital fired the plaintiff when she returned from leave because her pregnancy prevented her from lifting 150 pounds, which the hospital said was a bona fide occupational qualification for working at the hospital. …

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