Man fired during wife's pregnancy gets OK for bias suit


Expectant fathers -- not just expectant mothers -- have the right to sue for pregnancy discrimination, according to a U.S. District Court in Virginia.

That's what J. Scott Nicol did -- and won.

Mr. Nicol and his wife, Jody, were vice presidents of Imagematrix Inc., a computer graphics and arts business in Falls Church, Va. They worked for the company from 1988 to 1989, when both were fired.

The Nicols were told that declining sales and company cash flow were the reasons they were terminated.

But they thought the unexpected dismissals, six months after Mrs. Nicol told her employers she was pregnant, came because she was going to have a baby.

Mrs. Nicol, as might be expected, filed a sex-discrimination claim with the Equal Employment Opportunity Commission. The EEOC has jurisdiction in such cases under Title 7 of the 1964 Civil Rights Act, which was amended in 1978 to include the Pregnancy Discrimination Act.

What was unexpected was that Mr. Nicol also filed with the EEOC, charging that he was discriminated against on the basis of sex because of his wife's pregnancy.

In what may be the first case of its kind, the EEOC told the Nicols they both had the right to sue.

Last September, the case was heard by a federal judge in Alexandria, Va. Imagematrix asked that the case be dismissed, but the court agreed with Mr. Nicol that men may sue charging pregnancy discrimination.

To longtime observers, the landmark decision sounded like the other shoe falling after 15 years: In 1976, the U.S. Supreme Court made the astounding ruling that General Electric Co.'s refusal to pay women disability during pregnancy was not sex discrimination, even though men who were absent for health reasons received disability. The Pregnancy Discrimination Act was passed to overrule that shortsighted decision.

In establishing the basis for its decision last September, the Virginia federal court referred to a Supreme Court ruling that said employers who provide female employees with health benefits for maternity must also provide benefits to wives of male employees. Failure to do so is discrimination against men.

According to the Washington law firm Drinker, Biddle & Reath, which represented the Nicols, their case was settled recently out of court. A gag rule forbids anyone involved in the case to discuss it.

But the lawsuit raises important questions about dual-career families. It also raises the issue of nepotism.

There are 13.7 million two-career couples in the United States working full-time. At the same time, because of a shortage of highly skilled workers, corporate attitudes slowly are moving toward less resistance to hiring married couples. In fact, some states, including California, Illinois, Minnesota, New Jersey and Washington, prohibit discrimination based on marital status.

And in 1990 a federal judge in New Jersey invalidated the state's anti-spouse policy when a North Arlington, N.J., municipal court clerk married a police detective and the town's chief municipal judge asked one of them to resign. They sued on the basis that the nepotism policy infringed on their rights of privacy, family association and marriage.

In his ruling, U.S. District Judge Nicholas H. Politan stated emphatically: "No law, regardless of intent, should have a chilling effect upon marriage. To the contrary, it should embrace marriage as a legitimate societal goal." The decision applied only to municipal employees.

In the past, alleged discrimination against spouses working for the same company "generally has been more subtle" than the kind Mr. Nicol contends he was a victim of, said Charles Rodgers, principal of Work/Family Directions of Boston.

"Typically, we see people discriminated against in performance appraisals when they or their spouse have done something the company doesn't like, and both are docked for it," the consultant said.

Mr. Rodgers noted that the ruling in the Nicol case "recognizes the increased preponderance of dual-career couples in the work force. It's one more realization of the fact that when both husband and wife work, what affects one affects the other."

He suggests that as "traditional feelings of nepotism are eroding . . . more issues like this one will come up."

Mr. Nicol would have the right to file suit even if his wife did not sue, according to Susan Benton-Powers, management and employment attorney with Sonnenschein, Nast & Rosenthal in Chicago.

"This case establishes his right to sue if he believes he was fired because of her pregnancy," Ms. Benton-Powers said.

She gave Mr. Nicol "a lot of credit for standing up. Most men would not have thought to sue, and 10 years ago employers would not have been in this position, because so many had no-spouse hiring policies."

There's another aspect to pregnancy discrimination, Ms. Benton-Powers said. "It's unusual for this to happen to a man," she said. "It's not unusual for a woman."

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