Harassment Following Abortion, and EPLI Coverage



By:  Claudia D. Orr


These two topics though unrelated provide some interesting practical advice.

First, a former laundry room employee for a healthcare company in Tennessee has filed a lawsuit claiming that, a few months following an abortion, co-workers began calling her names and making snotty comments, including one about her belly getting bigger and she must be going for a “second” abortion. While she had not told anyone about her abortion, company officials had questioned the medical note from Planned Parenthood supporting her need for time off and demanding more details concerning the underlying “medical procedure”.

The employee complained about the harassment, but it continued, causing her to suffer headaches, sleeplessness and other emotional trauma.  When the employee sought time off for this under the Family and Medical Leave Act (“FMLA”), she was told her employment was terminated. A complaint has been filed in the Middle District Court of Tennessee. Meles v Avalon Health Care.

While a FMLA claim is obvious from the facts above, there is also a potential claim under the Pregnancy Discrimination Act (which was a 1978 amendment to Title VII) and, in Michigan, a claim under the Elliott-Larsen Civil Rights Act.  Both laws define discrimination “because of sex” to include pregnancy and medical conditions related to pregnancy.  Note: under Michigan law, a “medical condition” related to pregnancy does not include a nontherapeutic abortion not intended to save the life of the mother. We do not know the circumstances under which plaintiff Meles had her abortion but, a word to the wise, the harassment she endured from her co-workers could also violate these civil rights laws.

Lastly, several of my new clients have indicated that they were unaware that employers can purchase insurance to cover employment claims. The coverage is called Employment Practices Liability Insurance (commonly known “EPLI” by insurance agents) and the cost is based on such factors as the number of employees, past employment claims against the company, the amount of coverage desired and the size of the deductible.  When you consider that the cost of defending an employment lawsuit often exceeds $40,000 through the motion for summary dismissal, and $100,000 if there is a jury trial, it is worth consideration.  Most policies cover the cost of defense and the settlement/judgment (not punitive damages) for discrimination and other employment related claims, but only the cost of defense for wage claims under the Fair Labor Standards Act.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863.  http://www.plunkettcooney.com/people-105.html. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. March 2016.