8 Helpful Hints On What Not To Say (Or Do) To A Pregnant Employee

“Do not get pregnant, you have too many children, and the next person to get pregnant should stay home and consider herself fired!”

OK, that’s Helpful Hint #1 — Don’t say that!

However, this is exactly what a California wholesale distributer of orchids allegedly told female employees at staff meetings, according to an EEOC lawsuit. And, oh yes:  The suit also alleged that “pregnant employees were not reinstated or rehired when they attempted to return to work following the birth of their children but were discharged from the company.”

Now, even if you know nothing about discrimination in the workplace, you likely know that saying the words in Helpful Hint #1 cannot be legal — or a good idea. Right?

Background And Some Real-Life Tips

A little background and context, and, of course, some cases, will illustrate “what not to say to a pregnant employee.”

Pregnancy discrimination in employment violates the Pregnancy Discrimination Act (“PDA”), which is part of Title VII. This is true even if an employer claims to have the best interests of the employee in mind — such as employers “concerned” about the health of the employee or fetus — which we see in many of the cases involving pregnancy discrimination.  Indeed, myths, fears, and outdated paternalistic notions about pregnancy still top the charts for scrutiny by the EEOC.  I have often cautioned about employers not succumbing to myths and fears about disabilities or pregnancy, and not attempting to “protect” a pregnant employee or her fetus.

“Lacquer Thinner May Be A Risk To You or Your Unborn Child”

An illustration of this is our Helpful Hint #2. The EEOC sued a Florida corporation which operates a chain of Rooms to Go furniture stores and distributions centers nationwide, claiming that it hired a woman as a shop apprentice whose job “required the use of various chemicals to repair furniture.” She told the shop trainer later that that she was pregnant, and on the same day…

“she was pulled into a meeting with the company’s shop trainer, shop manager and regional shop manager and was asked to confirm that she was pregnant. … [D]uring the meeting, the regional shop manager 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.”

Yep. Now that’s paternalism.

An EEOC attorney commented that “[p]regnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume.  Companies must not impose paternalistic notions on pregnant women as doing so can result in unlawful discrimination.”

“A Pregnant Bartender Could Get Injured” — Helpful Hint #3

In another EEOC lawsuit, a bartender was fired by an Arizona bar because she was pregnant, and one of the owners was heard on an audio recording played in court saying, “There’s going to be a whole number of people that I would be offending by allowing a pregnant person to be behind the bar. They might look at it as the owner’s a f—ing idiot they’re letting a girl that’s pregnant that could get injured behind the bar bartending right now. How irresponsible are those guys?”

Ka-ching! Settled for $41,647.  The owner was, indeed, “a f—ing idiot” for firing her.

Helpful Hints #4 and 5:  The Job Is Unsafe For You: You Need A Doctor’s Note!

Oh, and here’s another such case which the EEOC settled for $35,000 — a moving company hired a “packer,” and when the business manager learned that she was pregnant, he told her that “preg­nant women should not be doing the packer job, saying it was unsafe.”

Finally, this one from a couple years ago:  A Texas-area donut franchise allegedly forced an employee into unpaid leave when its owner/general manager “received information that [she] might be pregnant.”  The EEOC claimed that the owner refused to permit her to work “unless she provided a doctor’s release indicating that her pregnancy was not ‘high-risk.’”

Ka-ching! Settled for $45,000.

So now we know what pregnancy discrimination typically looks like.

Now The Rest of The Helpful Hints!!

Okay, now that you’ve learned a little law, and have read what five dumb employers have said to pregnant employees — for which they ponied up large sums — here are three more useful tips as to what not to do to a pregnant employee.

Helpful Hint #6: If you have an employee who tells you that she is pregnant, do not restrict her water and bathroom breaks.

Helpful Hint #7: If you have an employee who tells you that she is pregnant, do not require her to inform every other employee when she is going to the bathroom.

Helpful Hint #8: If you have an employee who tells you that she is pregnant, do not ignore her repeated requests to leave early for a prenatal doctor’s appointment — and do not fire her when she leaves anyway.

Bonus Hint!  Do not do these things especially when you do not do them to non-pregnant employees.

Alas, I didn’t invent these last three hints: they were brought to you by a former Chipotle employee who sued for pregnancy discrimination and testified that all of these things were done to her by her boss, and who was awarded $550,000 by the good folks who sat on the jury in Washington, DC.

Takeaway

Think about it — telling a pregnant employee that she is restricted in her bathroom breaks.  Enough said.

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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 [email protected] and follow him on Twitter at @richard09535496.