Key Points

  • A claim under Code § 2.2-3909(B)(2) that an employer took adverse action against an employee for requesting or using a pregnancy accommodation requires only a showing that the accommodation was a motivating factor, not the but-for cause.
  • The court read the Virginia Human Rights Act's chapter-wide motivating-factor provision, Code § 2.2-3905(B)(6), into the pregnancy-accommodation statute, which is silent on causation.
  • The court held that Nassar's but-for rule for Title VII retaliation claims does not apply because accommodation claims are based on personal traits, not retaliation, and it parted ways with a Fairfax County Circuit Court decision that treated them as retaliation claims.
  • The court affirmed exclusion of a secretly recorded Microsoft Teams call under Code § 8.01-420.2 and held that evidence inadmissible at trial cannot be considered at summary judgment.
  • The summary judgment for the employer was reversed and the case remanded for the circuit court to apply the motivating-factor standard.

Virginia employees who say they were fired for using a pregnancy accommodation need to show only that the accommodation was a motivating factor in the decision, not its decisive cause, the Court of Appeals of Virginia held Wednesday in a published opinion that revives a business analyst's lawsuit against her former employer.

Judge Lisa M. Lorish, writing for a panel that also included Judges Raphael and Frucci, held that the Stafford County Circuit Court applied the wrong causation standard when it granted summary judgment to DBDriven.net LLC, an information technology provider. The panel sent the case back for the trial court to reconsider under the less demanding test.

The ruling sets the causation rule for claims under the Virginia Pregnant Workers Fairness Act, a 2020 law, now part of the Virginia Human Rights Act, that bars employers from taking adverse action against an employee who requests or uses a pregnancy accommodation. An employee can now win by proving the accommodation was one reason for a firing, rather than proving the firing would not have happened without it. As the court noted, "There are no appellate decisions in Virginia that have analyzed what standard of causation applies to any portion of the VHRA since the common-law tort was abrogated in favor of statutory causes of action."

The company won one point. The panel upheld the exclusion of a recording that the former employee, Chanda Waldenmaier, secretly made of a Microsoft Teams call with her supervisor, and held that evidence inadmissible at trial cannot be weighed at summary judgment either.

DBDriven offered Waldenmaier a job as a junior-level business systems analyst in February 2021. She started in March 2021 and worked full time on its largest contract, with the U.S. Marine Corps. She reported to Will Goldschmidt, the company's chief operating officer, a family friend who had recruited and mentored her.

After pregnancy complications, Waldenmaier asked in December 2021 to work from home, attaching a doctor's note. In January the company extended the accommodation through her July due date. On Feb. 10, 2022, a Marine Corps stop-work order cost DBDriven more than a third of its income. Other employees on that contract moved to billable projects, but Waldenmaier received only non-billable administrative work, and Goldschmidt gave an opening related to her former role to his daughter, an intern, the opinion said.

Waldenmaier attended an in-person company social event on Feb. 16, and Goldschmidt called her on Teams two days later. According to the opinion, he said he "found it very strange that you—that you could come to a social event during the workday, but you can never come to work." He also said that "everybody who's got limitations hurt[s] the company."

In March, Goldschmidt told Waldenmaier she would be placed on indefinite unpaid leave starting May 1. Around April 29, the company told her that on May 1 she would instead be terminated. She was seven months pregnant.

DBDriven said it released three employees, including two men, for lack of work, and that Waldenmaier, as the most junior analyst, did not fit its remaining contracts. Circuit Judge Michael E. Levy agreed that she had to prove but-for causation and found that "it cannot be demonstrated that she would not have been terminated but for the pregnancy accommodation."

Lorish's analysis turned on a provision the General Assembly added in 2020, Code § 2.2-3905(B)(6), which makes it unlawful for an employer to use pregnancy, childbirth or related medical conditions "as a motivating factor for any employment practice, even though other factors also motivate the practice." The accommodation statute itself is silent on causation. Because the motivating-factor provision applies except where the chapter provides otherwise, the court held, the legislature "expressed a clear intent for this to become the default standard across the VHRA."

The panel rejected the idea that firing someone for using an accommodation differs from firing her for being pregnant. "The VHRA simply does not create any meaningful space between discrimination based on the condition itself, and discrimination based on a reasonable accommodation required by the condition," Lorish wrote. "Discrimination based on the use of pregnancy-related accommodations is discrimination against pregnant employees."

DBDriven had argued that Waldenmaier's claim was in substance a retaliation claim, relying on University of Texas Southwestern Medical Center v. Nassar, the 2013 U.S. Supreme Court decision holding that retaliation claims under Title VII of the Civil Rights Act of 1964 require but-for causation. The panel called the federal court's interpretation "beside the point" because the General Assembly had written its own standard. "Discrimination based on the request for, or use of, reasonable accommodations is categorically different from retaliation for bringing or supporting a claim of employment discrimination," the court wrote.

In a footnote, the panel said it would "respectfully part ways" with a 2024 Fairfax County Circuit Court decision, Moore v. Copper River Shared Services LLC, which had likened accommodation claims to retaliation claims.

On the recording, the court applied Code § 8.01-420.2, which bars recorded telephone conversations from civil cases unless all parties knew of the recording, with one exception for certain admissions of criminal conduct. The panel wrote that "A video call made through a phone or computer qualifies as a 'telephone conversation.'"

Waldenmaier argued that the trial court should still have considered the recording at summary judgment. The panel disagreed, holding that "inadmissible evidence cannot create a genuine issue of material fact for the jury to resolve." It added that the trial court's written order excluded only the recording itself, not other admissible evidence about the call.

Tamara L. Slater represented Waldenmaier, with Alan Lescht & Associates P.C. on the briefs. Mitchell P. Goldstein represented DBDriven, with Setliff Law P.C. on the brief.

The appeals court affirmed in part, reversed in part and remanded. The Stafford County Circuit Court must now decide DBDriven's summary judgment motion again under the motivating-factor standard, considering only admissible evidence.