Pregnant And Want A Workplace Accommodation? Forget It: 'It’s Not Prison. You Can Quit!'
Get over it: pregnant women are a fact of workplace life.
Ah, the sensitive comment of a (male) lawmaker addressing a bill proposed in South Dakota “requiring reasonable workplace accommodations during and after pregnancy, including frequent or longer breaks, modified work schedules, and private non-bathroom space for breastfeeding.”
Unsurprisingly, it was voted down.
Last I checked, besides Title VII, 18 states and the District of Columbia have laws requiring pregnancy accommodations.
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About the comment above: True, you can quit; you can always quit. No one can argue with that. And I wonder what this guy’s position is with respect to sexual and racial harassment — would he similarly say “you can always quit”?
Probably.
Wanna work for this guy?
The Pregnancy Discrimination Act
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Anyway, let’s discuss the subject of this lawmaker’s thoughtful comment — pregnancy discrimination in the workplace, which violates Title VII — indeed, it violates the Pregnancy Discrimination Act (“PDA”) which amended Title VII.
One way of understanding the PDA is to look to the Americans With Disabilities Act (“ADA”) — there are many similarities and intersections between the two statutes, from the intent and purpose to the accommodation requirements. As I noted here before:
“The ADA was indeed passed to prohibit employment discrimination against people with disabilities – to address the stereotypes, assumptions, myths and fears which prevented those with medical impairments or disabilities from becoming employed.
The ADA provides that an employer has impermissibly discriminated against an employee claiming a disability where the employer has not made “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The same applies to the PDA.
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Get Over It: Pregnant Women Are A Fact Of Workplace Life
The very fact of women in the workplace has threatened male hegemony since the Mad Men fifties, with no let-up in sight. The increasing numbers of working women has increased this perceived threat — I have consistently written that harassment is, in good part, a result of power differential. The recent harassment scandals evidence this.
And the threat has resulted in a variety of manifestations — not least of which involves adverse actions taken against pregnant employees, and the refusal to hire pregnant women and even women who are of child-bearing age. That pregnancy discrimination is one of the six national priorities identified in the EEOC’s Strategic Enforcement Plan (“SEP”) as “emerging or developing issues” is a recognition of this reality.
“When Women Get Pregnant They Get Stupid”
The justifications given by employers for such adverse actions run the gamut from sheer ignorance to purported concern for the health and safety of the employee and/or “her baby.”
A case filed by the EEOC this month illustrates one such unbelievable “justification.” It sued a New Jersey realty investment firm where a regional property manager allegedly said that “when women get pregnant they get stupid,” and “I would never have kids, it’s gross,” and when learning of one woman’s pregnancy, he “subjected her to unwarranted job scrutiny and unrealistic deadlines or goals,” and then terminated her.
Women are stupid?? Who is this guy?
“Get Pregnant And You’re Fired!”
In a second case this month, the EEOC settled with a California orchid grower which allegedly held staff meetings in which female employees were told not to get pregnant and that if a female employee became pregnant she should consider herself fired.
Jeez.
The EEOC also alleged that after childbirth, female employees were not reinstated or rehired.
Ah, an enlightened employer, alright!
Earlier this year, the EEOC settled a case against a gym company in Maryland in which a pregnant woman applied for a job and after two job interviews (presumably not in person), she emailed her work availability and noted that she was 35 weeks pregnant. The company allegedly “stopped communicating with her,” and ultimately she was informed “that her position had been placed on hold and two other people had been hired.”
Does no one read or understand the law?
Say “No” To Paternalism And Outdated Myths And Stereotypes
It’s illegal to fire people with disabilities without attempting a reasonable accommodation. And firing employees because of baseless fears and stereotypes about their disabilities is also illegal, even if its “for their own good.”
For example, there was a suit brought by the EEOC on behalf of an employee who was fired because she had a prosthetic leg and the employer “did not want anyone bumping into her.”
Then there are the bosses who are oh-so-concerned about a pregnant woman’s health and safety. But it’s no longer the fifties, guys — paternalism in the workplace is out. And it is also illegal when it comes to pregnant employees.
“The day is over when an employer could force a pregnant woman out of her job because of stereotypical, unsupported beliefs about her abilities. A company cannot take it upon itself to remove an employee from her job because it suspects her pregnancy or a pregnancy-related medical condition may interfere with the performance of her duties.”
The quote above is from the EEOC, which this year settled a case of pregnancy and disability discrimination where it was alleged that a camp registrar was demoted when she became pregnant and developed gestational diabetes. The employer allegedly said that that the job was “too demanding” for her because of her pregnancy and related medical condition; she was also fired after she complained.
Recall that I stated above that there are many intersections between the PDA and the ADA?
A similar suit was filed by the EEOC this summer against a Guam resort which allegedly fired a pregnant front desk agent with gestational diabetes whose doctor requested that she be permitted to sit sometimes and wear open-toed shoes.
“No — The Job Is Too Risky For You!”
And earlier this year, a North Carolina furniture store settled an EEOC lawsuit in which it was alleged that it had hired a woman for a position where she would have to use various chemicals to repair furniture. When she told the company’s shop trainer that she was pregnant, she was allegedly summoned to meet with the regional shop manager who showed her “a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with [her]. … [She] was then told that because she was pregnant, she could no longer work at the facility.”
Good to know that Dad is in the workplace watching over you!
And last year, the EEOC sued alleging that an employee at a Motel 6 in New Orleans informed her employer that she had a “high-risk” pregnancy. When she later called her manager and told him that she could not work on that day because of a pregnancy-related illness, he told her that he was “modifying the work schedule and taking her off the schedule for the entire week, despite the fact that she only needed one day off.”
She was later “placed on a leave of absence until her pregnancy was over,” although she never requested this. “Forced leave of absence without pay due to her pregnancy” — this is what the EEOC alleged was violative of Title VII.
“It Will Hurt Your Baby!”
Finally, there was the 2015 case of an employer who fired a housekeeper after learning that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.”
Takeaway
An EEOC lawyer got it right about the law:
“Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”
Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.
