How you respond to an employee’s announcement that she’s pregnant can present an array of legal pitfalls. You can get into trouble not only for overt discrimination, but also for seemingly well-intentioned efforts to protect her from stress or other hazards.
It can sometimes be difficult to overcome misconceptions and stereotypes about a pregnant employee’s emotional state or work commitment. But with increasing numbers of women of childbearing age in the workforce, it’s more important than ever to make sure you know what to do-and what not to do-when an employee informs you she’s expecting.
Pregnant Employee Told Not To Fly
Joy Young, who is black, worked as a buyer for McDonnell Douglas Corp. in Southern California. When Young became pregnant, she told her immediate supervisor, Randy Elliott. Young claimed Elliott then began taking work assignments away from her and giving them to men. Elliot allegedly told her she could no longer work on important contracts because her pregnancy prevented her from flying to meetings with suppliers.
Termination Follows Poor Review
Young’s attorney told CEA that before becoming pregnant, Young had always received good performance reviews. But several months after her job duties began to change, Young got her first unsatisfactory performance appraisal and was given the lowest possible ranking.
Soon thereafter, she was terminated as part of what McDonnell Douglas called a reduction in force. However, according to her attorney, a less experienced white male worker replaced her the very next week.
Employee Sues Employer And Bosses
Young sued McDonnell Douglas and her two immediate supervisors for sex discrimination, claiming they illegally dismissed her because she was pregnant. She also alleged that sexist and racist remarks were tolerated by supervisors in the department.
The jury agreed, ordering McDonnell Douglas to pay $206,400. Her supervisors were also ordered to pay another $41,500. Attorneys for McDonnell Douglas couldn’t be reached for comment.
Don’t Make These Mistakes
Young won her case in part because it’s illegal to terminate or otherwise discriminate against a worker due to pregnancy, childbirth or a related medical condition. This could include, for example, taking away or changing work assignments without a request from the employee or a legitimate business reason.
But it’s not always easy to distinguish between what might be considered a helpful accommodation and illegal discrimination. To make sure you don’t inadvertently cross the line, here are three tips on what not to do:
- Don’t unilaterally modify job duties. In most cases, you should never decide on your own-without the employee’s input-that a pregnant worker will be unable to perform her job duties or need a special accommodation. And make sure you treat expectant mothers the same as other workers with short-term disabilities.
For example, you can require a pregnant employee to provide a doctor’s letter saying that continuing to work won’t be hazardous only if the same type of letter is required for workers with other disabilities.
- Don’t ignore accommodation requests. If a pregnant employee asks to be transferred to a less strenuous or hazardous position, however, the law says you must agree if it’s reasonable for you to do so. Note that you’re not required to create a new job or transfer another employee to accommodate the pregnant worker. But you probably do have an obligation to try to shift some of the worker’s responsibilities to other employees or allow her to take extra rest breaks, for example, if it’s reasonable to do so.
You may require a medical certification first, including a statement that the accommodation is medically advisable due to the pregnancy.
- Don’t raise new performance issues or terminate. Act cautiously before bringing up performance problems for the first time or disciplining a pregnant worker. If a problem arises, be prepared to give concrete examples of how her performance has fallen short and, if appropriate, work with her to devise an action plan to remedy the problem.
Document performance problems in writing and don’t assume the pregnancy is causing them. Because firing a pregnant employee always raises red flags, it’s best to avoid termination altogether or consider getting legal advice before taking action.
Finally, keep in mind that termination is also dangerous during or following an absence for pregnancy disability or family leave because in most cases workers have the right to be reinstated to their old jobs.