Five Tips If You're Planning To Fire A Pregnant Employee, Especially One With A Disability

The EEOC has long declared in its Strategic Enforcement Plan (“SEP”) that issues “involving the intersection between the ADA and pregnancy-related limitations is one of [its] six national priorities.”

Owl, Baby, Pregnant, Baby Belly

And as we have frequently seen, going after a medical or health facility for violations of these laws is not only a priority but “low hanging fruit” for the EEOC.  For example, see my post of September 6th, as well as a settlement just announced by the EEOC of a suit which alleged that a grant-funded health services company in southeastern Michigan “refused to extend additional unpaid leave to a peer counselor after surgery for a herniated disc, fired her based on her disability, and then refused to rehire her.”

Like “shooting fish in a barrel,” as readers have heard me say for a long time.

Well, the EEOC found a good case to address “the intersection” of the ADA and the Pregnancy Disability Act (“PDA”) – and has a new settlement of $50,000 to show for it.   An EEOC attorney said that “This settlement should remind employers that federal law protects pregnant workers who develop a disability during pregnancy.”

The EEOC alleged in the lawsuit that a South Carolina nursing center facility hired a licensed practical nurse who “suffers from paroxysmal supraventricular tachycardia (PSVT), which, without medication, can cause rapid heart rate, numbness in the extremities, tunnel vision and occasional blackouts.  [Her] PSVT is controlled by medication.  [The nursing center] was aware of [her] medical condition.”

When she later learned that she was pregnant, she had to stop the medication because of possible side effects to the fetus.  However, this caused her PSVT symptoms to act up and exacer­bated her normal pregnancy symptoms.  She was put on bed rest and was out for three days.  What did the employer do?  The director of nursing fired her because of her medical absences.

So, what do we learn from this case?

The five tips are:

First, don’t discriminate against people with disabilities.

Second, don’t discriminate against a pregnant employee, even if you think that working is not good for her health.  See the latest such case which the EEOC just settled for $35,000 – a moving company hired a packer, and when the business manager learned that she was pregnant he told her that “preg­nant women should not be doing the packer job, saying it was unsafe.”  An employer’s “paternalistic notions regarding pregnancy,” as an EEOC attorney put it, have no place in the workplace.

Third, don’t discriminate against pregnant employees with disabilities.

Fourth: Under both the ADA and Pregnancy Discrimination Act (“PDA”), before an employer can terminate a pregnant employee or an employee with a disability, the employer must engage in an interactive process (remember that?) to try to arrive at an appropriate accommodation.  Do it!

And fifth, but not least, the EEOC has you in its cross-hairs under both the ADA and PDA, especially if you are a medical or health care facility!  Better do the right thing!


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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]