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Differing reasons for pregnant employee’s dismissal revive discrimination claim.


The Sixth U.S. Circuit Court of Appeals, which covers Kentucky, recently overturned a trial court’s dismissal of a pregnancy discrimination claim. The case arose from a pregnant employee’s dismissal during a reduction in force (RIF). The court declined to address whether it’s proper to apply the “additional evidence” of discrimination standard, which is applied in most RIF-related discrimination claims, to a pregnancy discrimination clalim. The court’s majority opinion, however, reached some interesting conclusions about the circumstantial evidence the employee cited to support her claim.


In February 2001, Susan Asmo began working for Keane, Inc., which operates a nationwide network of offices providing information technology and business consulting services. She was hired as an administrative recruiter responsible for recruiting new employees in the Midwest region. At the same time, the company also hired Jennifer Bowman for the same position in its Western region. The women joined three other administrative recruiters who had been employed with the company for several years and were responsible for other regions of the country.

On September 11, Asmo learned she was pregnant with twins. During an October conference call, she informed her colleagues of her pregnancy. She alleges that most coworkers congratulated her, but her supervisor, Scott Santoro, said nothing.

In November, Keane was acquired by another consulting company, and Santoro was directed to reduce his staff. He selected Asmo as one of about 30 employees to be discharged. He decided to eliminate on administrative recruiter, and eh selected Asmo because she had the least tenure, the lowest number of hires in 2001, and her region projected little growth for 2002. Bowman, the only employee with similar tenure, kept her job because her region was projected to undergo a large amount of growth in the upcoming year. The head of the Western region indicated that it was essential to retain her, and there was no sign that the Midwest region head made a similar plea for Asmo.

Santoro informed Asmo that she was subject to the RIF on December 4. According to her, he said her expenses and salary were higher than other recruiters. She admits, however, that he stated that she and fewer hires and less tenure than other recruiters. Asmo asked if she could retain her job by accepting a lower salary and reducing expenses, but Santoro told her that money wasn’t the primary factor in the RIF.

Court’s decision

Asmo filed a claim for pregnancy discrimination against Keane. The trial court dismissed her claim on the grounds that she failed to state a prima facie (initial) case. The court held that she couldn’t show any connection between her pregnancy and the decision to discharge her, and she appealed to the Sixth Circuit.

The Sixth Circuit reversed the trial court’s decision and reinstated her claims. The Sixth Circuit held that Asmo met the prima facie standard because of the proximity in time between Santoro learning of her pregnancy and his decision to fire her. The court ruled that “temporal proximity between the employer’s learning of an employee’s pregnancy and an adverse employment action taken with respect to that employee…may be ‘indirect evidence’ in support of an inference of pregnancy discrimination.

The court held that although prior decisions required additional evidence of discrimination in RIF case involving other types of discrimination, there was no need to address whether that requirement should be applied to pregnancy discrimination cases. The court theorized that Asmo had shown a nexus between her pregnancy and her discharge, and that factor standing alone was sufficient additional evidence to state a claim.

The RIF was a legitimate, nondiscriminatory reason for Asmo’s dismissal. Thus, the Sixth Circuit turned its attention to whether she had established sufficient evidence to show that her selection for the RIF was a pretext for pregnancy discrimination.

The court first found that Santoro’s silence when notified of the pregnancy “could be interpreted as discriminatory animus.” More important, however, were the inconsistencies between Keane’s stated reasons for dismissing her and the reasons her supervisor initially communicated. The court held that those inconsistencies were significant because the reasons initially given by Santoro – that Asmo’s salary and expenses were higher than other recruiters – were false. In addition the court noted that another recruiter wasn’t selected for the RIF despite multiple client reviews criticizing hes performance. Viewing all the evidence in a light most favorable to Asmo, the Sixth Circuit found that she had sufficient evidence to proceed to trial. Asmo v. Keane Inc., 6th Cir., No. 05-3818, December 18, 2006

Bottom line

This case illustrates the importance of consistency when informing an employee of the reasons for termination. Even in a situation involving a RIF, when the reasons for termination appear to be clear, it’s important to be precise and consistent when explaining why an employee was selected. It’s always advisable to carefully document the reasons for an employee’s selection for a RIF and prepare for how that information will be communicated to her.


If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. 

Copyright 2007 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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