Changing attitudes, courts ease way

2-CAREER COUPLES GET BOOST

June 22, 1992|By Carol Kleiman | Carol Kleiman,Chicago Tribune

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 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 and 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.

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