Lapoint v. Orthodontics

DISSENT

CHUTICH, Justice

(dissenting).

I agree with the majority that the district court may have incorrectly believed that a finding of animus or hostility was required under the Minnesota Human Rights Act (the Act) before it could conclude that appellant Family Orthodontics, P.A. was actually motivated by respondent Nicole LaPoint’s pregnancy when it rescinded its offer of employment to her. I also agree with the majority that mixed-motive liability does not require proof that an illegitimate reason was the but-for cause of an employment action, only that it “actually motivated” the action. Goins v. W. Grp., 635 N.W.2d 717, 722 (Minn. 2001) (citations omitted) (internal quotation marks omitted). I depart from the majority’s determination that a remand is appropriate, however, because I believe that, when the appropriate legal standard is applied, the distinct court’s findings show that LaPoint’s choice not to reveal her pregnancy before receiving a job offer actually motivated Family Orthodontics’ decision to rescind its offer, in violation of the Act. I would therefore affirm the determination of the court of appeals that Family Orthodontics discriminated against LaPoint because she was pregnant. Accordingly, I respectfully dissent.

At the outset, I disagree that the ultimate question here is one of fact. Certainly, the question of what actually motivated Family Orthodontics to rescind the offer is one of fact, and this court must uphold the district court’s findings on that issue unless they are clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 289, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“[DJiscriminatory intent is a finding of fact to be made by the trial court....”); Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (“[W]e review the district court’s factual findings for clear error.”). But we review questions of law de novo and have the authority to correct the district court’s misapplication of the law without an accompanying determination that the district court's findings were clearly erroneous. See Rasmussen, 832 N.W.2d at 797-99.1 I agree with the court of appeals that the district court misapplied the law.

Dr. Ross contemporaneously cited two reasons for her decision to withdraw the job offer. She did this not once, but three times, referring each time to (1) LaPoint’s choice not to disclose her pregnancy at the interview, and (2) LaPoint’s request for 12 weeks of maternity leave.2 The district *519court interpreted these reasons as “interrelated,” finding that Dr. Ross would have preferred to discuss LaPoint’s maternity needs at the initial interview, so that they could have established then that Dr. Ross’s practice could not accommodate a 12-week leave. The length of the leave, the district court found, was Dr. Ross’s “overriding” or “sole” concern.

Although the district court found that Dr. Ross’s cited reasons for rescission were both related to the length of La-Point’s maternity leave, that interpretation does not change the distinct nature of the two explanations. Stated another way, two reasons, even if interrelated, are still two reasons.3 And if one of the reasons is unlawful, that gives rise to liability under the Act if a preponderance of the evidence shows that it actually motivated the rescission of the offer. McGrath v. TCF Bank Sav., FSB, 509 N.W.2d 365, 366 (Minn. 1993) (“[E]ven if an employer has a legitimate reason for the [employment action], a plaintiff may nevertheless prevail if an illegitimate reason ‘more likely than not’ motivated the ... decision.” (quoting Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 627 (Minn. 1988))); see also Goins, 635 N.W.2d at 722 (stating that disparate treatment liability depends on whether the protected trait “actually motivated the employer’s decision” (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (internal quotation marks omitted)).

Under the Act, an applicant may choose not to disclose her need for maternity leave in an interview, and an employer may not rescind a job offer because of that choice. The Act provides that “it is an unfair employment practice for an employer ... to ... require or request” that an applicant for employment “furnish information that pertains to ... sex.” Minn. Stat. § 363A.08, subd. 4(a)(1) (2016). The Act specifically defines “sex” to include “pregnancy, childbirth, and disabilities related to pregnancy or childbirth.” Minn. Stat. § 363A.03, subd. 42 (2016).

Because the Act protects an applicant’s right to withhold the need for maternity leave at the interview stage, it follows naturally that failure to disclose that information is an illegitimate reason for an employer to withdraw a job offer. This prohibition does not cease to apply simply because the employer wants the applicant to disclose her pregnancy for seemingly benign reasons. Although the district court found that Dr. Ross’s concern about LaPoint’s nondisclosure flowed from her concern over the length of the leave, the reason that Dr. Ross wanted LaPoint to disclose the pregnancy is irrelevant. Dr. Ross was not entitled to have a discussion about pregnancy with LaPoint at the job interview for any reason; nor could she hold the lack of disclosure against La-*520Point. What matters is that the lack of disclosure “actually played a role” in Dr. Ross’s decision to rescind the job offer. Goins, 635 N.W.2d at 722 (quoting Reeves, 530 U.S. at 141, 120 S.Ct. 2097) (internal quotation marks omitted).

By prohibiting employers from requiring the disclosure of pregnancy or childbirth information during interviews, this provision of the Act combats the well-documented phenomenon of unconscious bias against pregnant women and mothers in employment.4 See Joanna L. Grossman, Expanding the Core: Pregnancy Discrimination Law as it Approaches Full Term, 52 Idaho L. Rev. 825, 847-49 (2016) (describing social science research that reflects unconscious bias against pregnant or child-rearing women in employment contexts).

This bias does not necessarily arise from hostility toward pregnant women. For example, pregnant women are likely to be perceived as “more warm, but less competent, than women without children and men with children.” Id. at 848; see also Andrea L. Miller, The Use (and Misuse) of the Same-Actor Inference in Family Responsibilities Discrimination Litigation: Lessons from Social Psychology on Flexibility Stigma, 41 Wm. Mitchell L. Rev. 1032, 1039 (2015). Common stereotypes associated with motherhood include “that women with small children will be less dependable or productive than other employees; that mothers will not, or should not, work long hours; and that mothers are not committed to their jobs.” Catherine Albiston et al., Ten Lessons for Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence, 59 Hastings L.J. 1285, 1296 (2008) (footnotes omitted). To combat the effects of this bias against pregnant women, the Act gives applicants the right to withhold information relating to pregnancy or childbirth before receiving a job offer.

On remand, I trust that the district court will consider the above points of law. Additionally, under the analysis set forth in Friend v. Gopher Co., 771 N.W.2d 33, 40 (Minn. App. 2009), plaintiffs may prove discrimination under the direct method (as opposed to the indirect, burden-shifting method) by presenting direct evidence of discrimination, circumstantial evidence, or both. Perhaps because of the misconception that the direct method requires proof of discriminatory animus, the district court did not consider circumstantial evidence of discrimination when evaluating LaPoint’s claim under the direct method. In my view, upon remand, the district court must consider all the evidence together—direct and circumstantial—when determining whether it is more likely than not that LaPoint’s choice not to reveal her pregnancy before receiving a job offer actually played a role in Family Orthodontics’ decision to rescind her offer. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 92, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (holding that a plaintiff is not required to produce direct evidence of discrimination to obtain a mixed-motive jury instruction under Title VII).

In sum, the Minnesota Human Rights Act unambiguously prohibits employers from asking applicants about maternity needs before extending a job offer. Minn. Stat. § 363A.08, subd. 4(a)(1). Here, Dr. Ross rescinded LaPoint’s job offer in part because LaPoint did not disclose her need for maternity leave at the initial interview. Because this rescission clearly violated the Act, I see no need to remand to the district court. I would affirm the decision of *521the court of appeals. Accordingly, I respectfully dissent.

. In Rasmussen, this court concluded that two legal errors occurred in the district court's analysis and remanded for further consideration because it was "not able to ascertain exactly how tire two errors of law impacted the district court's decision to dismiss the Employees’ claims.” 832 N.W.2d at 799. That approach is unnecessary here because the correct application of the law to the factual findings of the district court requires judgment in LaPoint’s favor. Thus, we need not "engage in fact-finding anew” to affirm the court of appeals. Id. at 797; see also id. at 803-04 (Wright, J., concurring in part, dissenting in part) (concluding that remand is unnecessary if the evidence supports only one result (citing Pullman-Standard, 456 U.S. at 292, 102 S.Ct. 1781)).

. The district court found that Dr. Ross reasonably inferred that LaPoint would not accept the clinic’s 6-week maternity leave policy. Note, however, that LaPoint offered to consider a shorter maternity leave. This offer could be fairly construed as an attempt to *519negotiate, and one that Dr. Ross never acknowledged. Instead, Dr. Ross told LaPoint that she would "be in touch” when she returned from vacation, and then she did not contact LaPoint again. Dr. Ross admitted that she never explicitly offered LaPoint the position conditioned upon acceptance of the 6-week maternity leave policy.

. If the district court determined that Dr. Ross was not at all motivated by LaPoint's nondisclosure, I would consider that factual finding to be clearly erroneous. A finding that Dr. Ross was not actually motivated by La-Point’s choice not to disclose the pregnancy at the interview—in light of Dr. Ross’s repeated, consistent reference to LaPoint’s nondisclosure as the first of two reasons for rescinding the job offer—would leave me "with the definite and firm conviction that a mistake has been made.” Rasmussen, 832 N.W.2d at 797 (quoting In re Stisser Grantor Trust, 818 N.W.2d 495, 507 (Minn. 2012)) (internal quotation marks omitted).

. The brief of amicus curiae Gender Justice gathers considerable social science research showing that pregnant workers are routinely viewed less favorably than non-pregnant workers in several employment contexts, including hiring,