Summary:  You Cannot Fire Or Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You” Or Because Of Potential Harm To The Baby Or Because “Pregnant Women Should Not Work”

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On March 13, 2013 we cautioned that the EEOC is very serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA), especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health.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.    See our post of April 18th entitled “You Cannot Discriminate Against A Pregnant Employee Because Of ‘Outdated Myths Or Stereotypes Or Couched In The Language Of Safety And Health.’”

Our recent post of June 25th related to a new suit in which the EEOC claimed that a spa franchise in Charlotte, NC fired a just-hired employee (a front desk associate) because she had just notified it that she was pregnant.   According to the EEOC, the clinic manager told her that “pregnant women should not be working.”

Jim Watson, an HR generalist in the Detroit area, wrote to warn HR folks about this aspect of the PDA: 

“Richard, great article. I think there are a lot of employers who erroneously make decisions to fire or remove pregnant employees from certain jobs out of misguided notions of protecting the employee/unborn child from certain work conditions or out of a general fear that the pregnant employee will get hurt and sue or drive up Workers Compensation costs.

I think it is vitally important that we HR professionals continue to help educate our employers that this type of thinking is no longer acceptable to the federal government and the agencies with activist agendas that get these types of complaints.   Discussing such EEOC decisions helps to validate our message.

I have advised the management teams I have worked with in the past to make an individual assessment of each situation and to take appropriate action when necessary based upon the unique facts of that situation.   Having good data and factual information to work with, not overreacting and talking with the employee are all suggested courses of action.”

Our Repeated Takeaway:   Take this issue 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.