Recent lawsuits target pregnancy discrimination

When a female employee of O’Reilly Auto Parts became pregnant, she told her employer that her doctor imposed a 30-pound lifting restriction for the duration of her pregnancy. The company refused to let her continue working, and required her to take unpaid leave under the Family Medical Leave Act. When the employee’s leave expired four months before the baby was due, her employment was terminated.

When a female security guard employed by Whelan Security Co. became pregnant, the company decided she was no longer fit for duty and summarily discharged her. The company made this decision even though the employee’s doctor had cleared her to work without restrictions. She was, in effect, discharged because of her pregnancy.

The Equal Employment Opportunity Commission’s St. Louis District sued these employers in 2004 for having violated Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Act. These were two of 16 such suits filed by EEOC District offices.

The mistakes that Whelan Security and O’Reilly Auto Parts made are typical of the mistakes made by other employers. This article is intended to help employers identify areas of their pregnancy related policy or practice that may need to be changed.

Under federal and state law, the rules are fairly straightforward: With respect to leave and all other terms and conditions of employment, pregnant employees must be treated in the same manner as employees who are temporarily disabled.

So, in deciding how to manage pregnant employees, employers should ask themselves how they ordinarily manage employees who have a broken leg or a severe rash.

An employer cannot fire an employee because she is pregnant and cannot refuse to promote or hire someone because of pregnancy. A pregnant employee must be allowed to work as long as she is able to perform the job.

There are some practical concerns that may factor into employer decisions about how to treat a pregnant employee, or applicant, and that may lead an employer into illegal decisions. For example, it may seem counterintuitive to hire someone whom the employer knows will need to be off work within a few weeks or months to deliver a baby.

Some employers may have private views about the reliability of new mothers, and may let these views influence decisions.

Some old stereotypes about pregnancy still operate, and may lead to illegal actions by employers. One is that pregnant employees must be “protected,” and removed from positions that might expose them to physical injury. This occurred in the Whelan Security case. Such motivations, though often well intentioned, are inconsistent with federal and state law.

As in the O’Reilly Auto Parts case, the Family Medical Leave Act is often used for childbirth and related confinement. Employers should inform employees about the availability of FMLA leave but may not require a pregnant employee to take leave simply because she is pregnant, nor can the employee be terminated simply because the FMLA period has expired.

The Family Medical Leave Act is independent of the Pregnancy Act and has different jurisdictional and procedural requirements. It is enforced by the U.S. Department of Labor, Wage and Hour Division.

Under the Pregnancy Act, as well as Missouri nondiscrimination statutes (8 CSR 60.3), employers may not require pregnant employees to take or return from leave at some predetermined time, unless they require employees with other temporary disabilities to do the same. If light duty work is provided to employees who are temporarily disabled, then light duty work should be provided to pregnant employees.

If employers require their temporarily disabled employees to bring in a doctor’s statement concerning their limitation, they may require pregnant employees to do the same. Pregnancy, childbirth, and related health problems must be covered under the employer’s health plans on the same basis as other medical conditions.

Employers should not maintain one leave policy for pregnancy related disabilities and another for other types of temporary disabilities.

Employers are encouraged to publish a well-thought-out, well-articulated policy for handling temporary disabilities of all kinds, including pregnancy. Such a plan will provide a roadmap for managers to follow and should serve to ensure consistent, nondiscriminatory treatment of all temporarily disabled employees.

After a policy has been published, employers must act to ensure that the policy is being followed. When EEOC investigates a claim of pregnancy discrimination, it looks to practice, as well as policy and can determine when policy is not being put into practice.

The St. Louis District of EEOC can provide technical assistance and training to employers on the issue of pregnancy, or any other area of the law, upon the employer’s request.

Lynn Bruner is director of EEOC’s St. Louis District, which covers the states of Kansas, Missouri and southern Illinois.