Since the Equal Employment Opportunity Commission issued an advisory about pregnancy discrimination in July, the agency has been busy targeting employers it accuses of breaching the Pregnancy Discrimination Act.
Consider these recent actions:
In September, a Wisconsin Merry Maids franchise owner agreed to pay $40,000 to settle a pregnancy discrimination lawsuit filed by the EEOC. The agency accused V&B L.L.C. of firing a woman because she had suffered from pregnancy-related issues at work.
Pet food manufacturer Triple T Foods Inc. in August settled a pregnancy discrimination case filed by the EEOC for $30,000. The company had been sued for firing a lab technician an hour after she had informed the company she was pregnant. The company said it had to let her go due to safety concerns for the mother and baby.
The EEOC in August sued a company for pregnancy discrimination after it withdrew a job offer upon learning the candidate had just given birth. Savi Technology Inc. is accused of withdrawing the offer for its human resources director position after the woman told the company vice president and general counsel that she had recently given birth and had had surgery related to her pregnancy.
If you are surprised, you shouldn’t be. Since the last quarter of year 2011, the EEOC has filed more than 45 lawsuits involving pregnancy discrimination.
Said an EEOC lawyer in a recent press release:
“Employers should be well beyond archaic prejudices against women who are pregnant. Too many employers have continued to deny female workers equal opportunity to earn a living for their families and themselves, simply because they are pregnant or ‘showing.’
“The EEOC continues to combat such prejudices and practices as part of its efforts to educate the public about the rights of women in the workplace [and] everyone should be free from this obvious form of sex discrimination.”
What you can do
Many employers erroneously make decisions to fire or remove pregnant employees from certain jobs out of misguided notions of protecting the employee or the unborn child from certain work conditions, or out of a general fear that the pregnant employee will get hurt and sue – or file a workers’ comp claim.
Hiring managers and supervisors must understand that this type of thinking is no longer acceptable for both the federal and many state governments.
The best strategy to take if you are concerned about the well-being of a pregnant worker or her unborn child is to make individual assessment of each situation and take appropriate action when necessary based upon the unique facts of that situation.
You should try to have in hand good data and all the facts before taking action. You should also talk to the employee and not overreact.
As an employer, you need to take this issue seriously because the EEOC has made one of its top priorities obtaining not just monetary damages, but also “targeted, equitable relief” such as all sorts of injunctions.
The EEOC in its Pregnancy Discrimination Act (PDA) Guidance gives numerous examples of what would constitute discrimination. It specifically warns again using outdated notions or stereotypes in making decisions about a worker or applicant’s ability to perform their job while pregnant.
The guidance specifically addresses the issue of when normal pregnancies without complications reach the threshold of a “disability” under the Americans with Disability Act (ADA). It’s typical in many pregnancies for an employee to reach a stage where she has a 20-pound lifting restriction, or the need for an occasional sit-down break. Must an employer accommodate those restrictions under the PDA?
At that point, the EEOC says, the employers must accommodate those restrictions if it also makes accommodations for non-pregnant employees. In the large majority of situations, the employer will have provided (or normally would provide) the accommodation to some non-pregnant employees – notably, those workers with an actual disability the employer is required to accommodate under the ADA.
The EEOC’s PDA Guidance, released in July, states: “[A]n employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, or fringe benefits.”
A final word about being sued: The best protection, after having policies in place to ensure your business does not take any discriminatory actions against pregnant employees, is to have employment practices liability insurance.
Should you get sued, such a policy will pay for legal costs, fines and damages for not only pregnancy discrimination, but a myriad of other lawsuits your employees may file against your company.