The EEOC just announced two settlements of cases involving pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (“PDA”). One involves a simple failure to hire, but the other is more nuanced and has more to teach us about pregnancy discrimination.
On March 13, 2013 we cautioned that “The EEOC is serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA) – very serious – especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child. We have repeatedly issued this warning, and have cited new case filings or settlements to support our concerns. Take this seriously … because the EEOC has made obtaining not just monetary damages but also “targeted, equitable relief” – such as all sorts of injunctions — one of its top priorities … This means that you could be scrutinized closely by the EEOC and/or the Court for years.”
In fiscal year 2013, of the lawsuits filed in the last year by the EEOC, two areas stand out: more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims. Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA, sex and pregnancy discrimination claims.
That is the bullseye in their target.
You Cannot Refuse To Hire An Otherwise Qualified Pregnant Applicant
In the first settlement just announced, the EEOC alleged that a store in Manhattan, after multiple interviews of the applicant who was extended an offer, refused to hire her after being informed that she was pregnant. The company settled for $90,000.
Takeaway (as noted by an EEOC attorney): “Employers have a duty to respect the ability of pregnant women to participate in the workforce. The EEOC is committed to enforcing the law when employers fall short of this duty.”
You Cannot Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You” Or Because Of Potential Harm To The Baby
The second case merits more attetion.
In that case a trucking company agreed to a $27,000 settlement in which it was alleged that an employee who was 7 1/2 months pregnant told the manager that her doctor had excused her from work for a few days due to an arrested case of premature labor. The manager, however, refused to permit her to come back to work until after the birth. When she complained and said that she was going to file an EEOC charge she was fired.
Why would he refuse to allow her back to work?
In the March 13, 2013 post referenced above, we wrote about “an employer who ‘could not allow [the pregnant employee] to continue to work as a housekeeper because of the potential harm to the development of her baby.’ We also wrote that the EEOC had announced the settlement of a pregnancy discrimination case in Mississippi where a pregnant female employee at a bar was fired without warning and without prior disciplinary action because, as it was told to her, ‘The baby is taking its toll on you.’ And in J’s Seafood Restaurant of Panama City, Florida two servers were fired because ‘their pregnancies caused them to be a liability to the company.’ The EEOC just today announced that it has chalked up another such settlement with the owner of a Michigan Comfort Inn, who has agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages after it fired a pregnant employee because, as the EEOC said, “it could not allow the employee to continue to work as a housekeeper because of the potential harm to the development of her baby.”
As we noted above, “you [cannot] fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child (emphassis added).”
It seems that this was the reason why the manager in this latest case refused to allow the woman back to work in her last 1 1/2 months of pregnancy.
An EEOC lawyer seemed to say as much: “The law ensures that a woman cannot be forced to leave her employment because of her pregnancy or because of her employer’s paternalistic notions regarding pregnancy. The EEOC will continue to actively pursue cases where an employee is subjected to discriminatory treatment because she is pregnant (emphasis added).”