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Jan 11, 2016

What Motivates You?

By: Paul Ebeltoft

In the HR world, as in life, there are many reasons to take action. In HR, you can decide to hire someone because of their credentials or because of their personality. In life, you can decide to lose weight to avoid buying a new wardrobe or to promote heart health.

Sometimes there is one reason to do something. Sometimes there are multiple. But in HR, you have to consider whether your stated reasons for acting can be interpreted in different ways, one legal and one not.

This is not “mixed motivation” analysis in the sense that both a discriminatory motive and a nondiscriminatory motive are present. What I am suggesting is that HR must be alert to circumstances where a single motivating factor could be interpreted in two different ways. Failing to understand the distinction has caused trouble for Dr. Angela Ross, an orthodontist from Minnesota in the case of Nicole LaPoint v. Family Orthodontics, P.A. MN Ct. of Appeals A15-0396, December 14, 2015.

Here are the facts:

Dr. Ross had a job opening. Nicole LaPoint applied. The two interviewed. It went well. LaPoint was offered the job and accepted. At the time she accepted, LaPoint was pregnant. She was something less than three-months along and had not told her family about the baby on the way. None-the-less, after the offer and acceptance, LaPoint confided in Dr. Ross that she was due to deliver about six months after her start date.

Dr. Ross told LaPoint that her clinic’s policy was to allow six weeks or less of pregnancy leave. LaPoint said that she had gotten 12 weeks for her first child while employed elsewhere but would consider taking less leave. The next day Dr. Ross rescinded the job offer.

Notes by Dr. Ross on LaPoint’s application show that, at the time Dr. Ross rescinded the offer, she was concerned about the length of leave sought by LaPoint. “[W]ill 3 mos maternity be too disruptive? Most [of my other hires] took 6 wks[.]”

When LaPoint sued, Dr. Ross stated that she withdrew the job offer due to her concern about the difficulties the clinic would experience if LaPoint took more than six weeks of maternity leave, not due to LaPoint’s pregnancy. The trial court found that Dr. Ross and three of her employees “credibly testified as to the disruption a lengthy leave of absence would cause the clinic.”

The Court of Appeals viewed the same facts differently. It swept aside the trial court ruling in favor of Dr. Ross. LaPoint’s need for leave was due entirely to LaPoint’s pregnancy, the Court of Appeals said. Dr. Ross’s concern for the length of the leave could have been handled in other ways, such as offering the job contingent on accepting leave of no longer than six weeks, Instead Dr. Ross rescinded the offer. This is evidence, the Court of Appeals found, that Dr. Ross discriminated against LaPoint on the basis of pregnancy in a purposeful, intentional, and overt manner. (see footnote below)

The HR Takeaway

When you are articulating reasons to take a job action, step out of your company role. Put yourself in the shoes of the person affected. Ask whether a reasonable person could consider your company’s motivation to be unlawful. If so, be alert to alternatives.

Dr. Ross, it seems, could have satisfied the Court of Appeals by stating exactly what length of time LaPoint could have been absent yet not disrupt the work of the clinic. The Court of Appeals also would have taken into account, it seems, an effort on Dr. Ross’s part to contact LaPoint to further discuss the issue of leave. Dr. Ross did neither. Instead she decided that her reason was good enough and looked for a different, non-pregnant employee.

In sum, remember that, when a lawsuit happens, the court will consider your employment decision from all points of view, yours and that of the other side. Take all reasonable actions to enable your company to show that its motivation is a bonafide business decision and that alone.

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(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the January, 2016 Southwest Area Human Resource Association newsletter.

In fairness to the decision, but outside the scope of this article, it should be noted that Dr. Ross also was upset at not being told during the interview by LaPoint that she was pregnant. This is an improper reason to rescind a job offer, the Court of Appeals said. To find otherwise would allow prospective employers to punish applicants for failing to disclose a fact about which the interviewing employer could not lawfully inquire.