Lawsuit: Woman fired for refusing to undergo an abortion

July 18, 2012

Proabortion Antichoice?Nearly every work environment has its share of office politics.

And though these conditions may interfere with productivity, they don’t generally cause too much hardship for the employer.

Unless, of course, these office politics cross into the territory of creating an actionable legal claim.

That seems to be what happened in the case of Abigail Shomo.

According to Shomo’s complaint, she was fired from her job as a waitress because she was pregnant and refused to have an abortion.

Although these alleged actions would certainly be unlawful, how are they the result of office politics?

According to the complaint, the father of Shomo’s child is the son (Leopoldo Florez Aguirre, Jr., or “Junior”) of the company’s owner (Leopoldo Lopez Aguirre, or “Mr. Aguirre”).

The complaint states that Junior was involved in a sexual relationship with Shomo, and that, after Shomo informed him that she was pregnant, he told her that she should have an abortion, and that he would pay for it.

Junior also told Shomo that his father planned to fire her if she continued with the pregnancy, and that she could avoid all these problems for herself (i.e. keep her job) if she aborted the child.

Shomo refused, though, and according to the complaint, her job became much more difficult thereafter.

For instance, Shomo was asked to work fewer hours, and the rest of the wait staff refused to help her clean tables, take out food orders, and inform her when a new table arrived.

So yeah, office politics.

And ultimately, Shomo was fired.

As far as the strength of Shomo’s legal claims, if she can sufficiently demonstrate the allegations in her complaint – specifically, that she was told that she being fired because she was pregnant by Mr. Aguirre – she will prevail.

Such actions would clearly be in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination by employers with more than 15 employees on the basis of race, color, religion, sex or national origin.

Considering, however, that the complaint alleges that a restaurant manager nicknamed “Shorty” told Shomo after she was fired that they could have employees dispute “everything [she] was saying,” Shomo’s factual showing will likely be a battle from the start.

Nonetheless, the fact that the child is Junior’s (the son of the restaurant owner) says enough to support Shomo’s assertions to sufficiently counterbalance any adverse testimony from Mr. Aguirre’s current employees.

Many of you may still be wondering about the legal implications of trying to force one of your employees to have an abortion.

In one of Shomo’s earlier complaints (the most recently-filed complaint was her third amended one), she tried to assert a “Bowman claim.”

A “Bowman claim,” originating from the 1985 case Bowman v. State Bank of Keysville, is a state wrongful discharge claim in Virginia that the termination of employment occurred against some explicit public policy contained in the Virginia Code.

It used to be quite a bit broader than it is now, thanks to some actions taken by the Virginia General Assembly in 1995 to limit the claim’s scope.

Now, in order to successfully invoke a Bowman claim, the reason for the employee’s firing must have been because she was exercising a right specifically protected by Virginia law, because she was part of a statutorily-protected class, or because she refused to engage in criminal conduct.

Since it isn’t a crime to encourage someone to have an abortion in Virginia, and because there are no explicit protections under Virginia law to shield against such urgings, the court ruled that Shomo was attempting to plead a Bowman claim unrecognized by the Virginia Supreme Court.

So, legally speaking, the fact that Shomo was allegedly given the choice between an abortion and her job is only relevant for the purposes of showing pregnancy-based discrimination (prohibited as a form of sex discrimination under Title VII).

Nevertheless, a Title VII discrimination suit is not something you’d want to face as an employer, so it’s good advice to never present such a choice to any of your employees.

The better advice, though, is to avoid all romantic entanglements at work.