Employers May Not Bar Pregnant Employees From Work Because Of Outdated Myths Or Stereotypes

Two months ago I did a post called “The ADA: No Employment Decisions Based Upon Fears, Myths and Stereotypes.” I wrote about an ADA case and commented that “Now is as good a time as any to come back to the issue of employers claiming to base adverse employment decisions upon the ‘best interests of the employee’ with a disability.”

Today we will address similar issues under the PDA: The Pregnancy Disability Act.

Owl, Miss, Pregnant, Baby, Longing

In the ADA case, the EEOC sued Amtrak alleging that it withdrew an offer of employment to a machinist when it found out that he suffered from epilepsy, citing fears for the applicant’s safety “should he have a seizure” – notwithstanding that the applicant’s doctor had confirmed that he had been seizure-free for years and was fully and safely able to perform his essential job duties without limitation, while on medication.

The EEOC commented that the ADA protects Americans with disabilities from employment discrimination “based on myths and stereotypes about their conditions.” (Take a look at my prior post for more about stereotypes and myths and the ADA).

I repeated my oft-mentioned caution to employers not to discriminate against employees purporting to use concerns about their health or safety.  Such decisions better not be based upon outdated fears, myths or stereotypes!

I recalled a case involving not the ADA but the PDA:  about an employer who fired a housekeeper after learning that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.”   An EEOC attorney said that “Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”

Well, it did not take long for the EEOC to announce the settlement of a similar PDA case.   A Texas-area donut franchise allegedly forced an employee into unpaid leave when it’s 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’” (PDA violation) and then fired her when she complained about this (retaliation).

For this, the company will pay $45,000 in settlement.

The EEOC’s press release stated that “Under the PDA, an employer cannot force a pregnant employee, or one the employer suspects of being pregnant, to provide medical documentation proving that the employee can continue working, unless the employee requests some pregnancy-related accommodation. Further, if an employee complains about pregnancy discrimination, the employer must investigate that complaint and must not take any retaliatory employment action against her.”

And an EEOC attorney said that “An employer that imposes its own personal beliefs and concerns about an employee’s pregnancy on her violates federal law and invites legal action.”

Takeaway:  As I said in my prior ADA piece, the EEOC is still targeting baseless fears, outdated myths and stereotypes.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]