You may think twice about getting a facial from Elizabeth Arden Salons after you hear this story. An Elizabeth Arden Red Door Salon employee is claiming that she was unfairly discriminated against, and subsequently fired, due to her decision to have a baby. Former employee, Sandra Madero, is claiming the company violated her rights and has initiated a lawsuit against the upscale salon for four million dollars.
The suit alleges that the famous salon violated the Pregnancy Discrimination Act, as well as the Family Medical Leave Act, leaving her unemployed with nowhere to turn. With pregnancy discrimination suits on the rise, can Madero's claim succeed or is she left without a "facially" valid claim? Let's take a pregnant pause to find out.
Since the passage of the Family and Medical Leave Act (FMLA) in 1993, employers are required to grant employees up to 12 workweeks of unpaid leave during any 12 month period for "the birth and care of the newborn child of the employee" (US Dept. of Labor). This basically means that all workers must be offered the opportunity of extended leaves of absence from their job, without fear of being terminated or forced into a lower job, in order to deal with the hardships of pregnancy. And that's not all! Congress also expanded the Civil Rights of 1964, (which prohibited discrimination on the basis of race, color, religion, sex, or national origin), to include a prohibition of discrimination on the basis of pregnancy within the category of unlawful gender discrimination. This means that your boss cannot fire you simply because you are pregnant, nor can she refuse to hire you based solely on the fact that you are pregnant. These two laws together seem to provide a lot of protection to pregnant employees. So where does that leave Madero? Will Elizabeth Arden be opening up her purse?
Madero became pregnant in 2005 when she claims she had been working 60 hours a week. Her doctor then ordered her to reduce her working hours because of unexpected weight loss and increased contractions. When Madero explained this to her bosses, trouble started to brew. As a salaried employer, Madero claims the salon would not let her reduce her hours, so she went on unpaid leave under the Family Medical Leave Act. This allowed Madero to take three months off without any repercussions as the Act explicitly provides. However, when the three months were up, her doctors still did not feel confident in her ability to work the 60 hour schedule that Elizabeth Arden demanded.
Madero then used vacation day after vacation day, trying to buy enough time so that her doctor would eventually give her the go-ahead and let her return to work. Just as she almost crossed the finish line, her vacation days ran out one week before the baby was born. She was almost immediately fired. At first glance this looks like the salon violated her rights and discriminated against her unfairly. However, the employer did give the mandated 12 week leave under FMLA, and they did not fire her solely because she was pregnant, so are they in the clear? That will depend on what evidence Madero can provide to the court.
Judges are likely to find in favor of employers who do follow the letter of the FMLA law. Ms. Madero would need to show a "disparate impact" - i.e., that she was unfairly discriminated against because she was pregnant. In this case Madero would need to show that other full-time employees that objected to the 60 hour work week because of medical reasons were treated better than she was. This may turn out to be harder than taking candy from a baby!
However, if not impossible, and Madero does survive the initial summary judgment (dismissal) inquiry, and makes it to trial, she could increase her chances exponentially. Hot shot employment attorney David Long-Daniels, who has successfully defended several large companies in pregnancy discrimination cases, expressed his doubts about trial: "These cases can be extraordinarily dangerous if they make it to a jury. It has been my experience that if a case survives summary judgment and makes it to a jury, the chance of success (for the woman plaintiff) are very high. Accordingly, we are very proactive and defend these cases quite aggressively in order to ensure that they do not make it to trial."
So there it is! If Ms. Madero convinces the judge in the preliminary arguments she may have a good chance at trial.
Bottom Line: Speak to an employment lawyer if you are having uneasy feelings about being discriminated against because of your pregnancy. If you were fired while pregnant, and believe your pregnancy to be the reason for your dismissal, you should speak to legal counsel about filing a claim for discrimination on the grounds of pregnancy with the Equal Employment Opportunity Commission (EEOC). If you're thinking you can't afford this, here are a few tips! The filing is free and the EEOC makes it easy to proceed throughout the entire process without a lawyer. After all, we can't leave our pregnant mothers out to "blow" dry!
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.