Perceived Pregnancy Claims Permitted Under CFEPA

In a case of first impression, the Connecticut Superior Court found that claims of perceived pregnancy are covered under the Connecticut Fair Employment Practices Act (CFEPA). In Sieranski v TJC, Esq., (CT Super. Ct., July 10, 2018), the plaintiff claimed she was fired after telling her supervisor she thought she was pregnant, even though it later turned out she wasn’t.

Plaintiff was hired as a paralegal shortly after giving birth to a child. Her boss, an attorney, periodically asked her if she planned to have additional children, and if so, when. About five months after starting at the firm, plaintiff told her boss that she was feeling nauseous and that she was 99.9% sure she was pregnant again. Four days later she was terminated because she was “not a good fit.”

Plaintiff filed an action claiming wrongful termination in violation of public policy, and pregnancy and gender discrimination under CFEPA. Defendant moved to strike all three counts. In particular, defendant claimed that because plaintiff was in fact not pregnant, nor affected by pregnancy or any related medical condition, she was not covered by CFEPA’s pregnancy discrimination provision. Plaintiff countered that the law recognizes claims of perceived pregnancy discrimination, and that employees fired based on a perception of pregnancy should be covered under CFEPA.        

After finding no basis for the wrongful termination claim, the court addressed the pregnancy and gender discrimination claims. It reviewed CFEPA’s language and found that the law’s prohibition of sex discrimination expressly included claims of discrimination related to pregnancy. It stated the issue as “whether Connecticut recognizes a cause of action for discrimination based upon an employer’s perception that the employee is pregnant.” 

Lacking any appellate guidance, the court admitted the statute does not expressly recognize the claim. However, it analogized the current case to the Connecticut Supreme Court’s decision in Desrosiers v. Diageo NA, Inc., which found claims of perceived disability covered under CFEPA, even though the statute failed to expressly state such a cause of action. In Desrosiers, the Supreme Court stated that allowing a company to terminate someone based on a perceived disability, even if an actual disability did not exist, was inconsistent with the legislative intent and would lead to absurd results. To illustrate the bizarre results it was concerned with, it compared an employee fired because of a chronic medical condition with one fired because he was perceived to have the same chronic condition. In the first instance the employee would be protected by the Act while in the second no such protection would exist, even though the same discriminatory motive existed in both cases.

Applying the Desrosiers thinking to perceived pregnancy discrimination, the court in the instant case found that discriminatory actions based on perceived pregnancy are prohibited under the CFEPA. Any other conclusion would lead to the same bizarre results addressed by the Desrosiers court. It concluded its opinion by stating that CFEPA prohibits employers from discriminating against individuals whom they regard as pregnant.

Interestingly, the court, went on to strike the gender discrimination claim. It did so by finding that plaintiff did not provide any evidence that similarly situated males were treated differently than plaintiff. While the court was technically correct, as males would never be perceived as pregnant and thus be subject to potentially different treatment, the ruling may also indicate that the court wanted to avoid issuing a decision that would open the door to perceived gender claims, especially in today’s gender fluid environment. Instead it focused on the narrower issue of perceived pregnancy.

Employers should note that while this case involved perceived pregnancy there is a growing movement to recognize all kinds of discrimination based on perception. This includes perceived color, national origin, and race claims. While the EEOC has endorsed such coverage under Title VII, neither the U.S. Supreme Court or any federal appellate court has addressed such claims. Lower federal district courts have ruled both ways on perceived race claims, with the majority to date finding them not covered.

This area is sure to evolve over time and employers should continue to monitor cases that may provide greater clarification in the future.