Paternalism And Pregnant Employees: A Bad Idea
Pregnancy discrimination in employment is against the law. This is true even if an employer claims to have the best interests of the employee in mind.
This is, in fact, the classic example of paternalism – and employers must resist that notion. It is illegal.
To underscore this, the EEOC just sued a Florida corporation that operates a chain of Rooms to Go furniture stores and distributions centers nationwide, claiming that it hired a woman as a shop apprentice whose job “required the use of various chemicals to repair furniture.”
She told the shop trainer later that that she was pregnant, and on the same day, she “was pulled into a meeting with the company’s shop trainer, shop manager and regional shop manager and was asked to confirm that she was pregnant. … [D]uring the meeting, the regional shop manager showed [her] a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with [her] … [she] was then told that because she was pregnant, she could no longer work at the facility.”
On May 18, 2016 I wrote that:
“Myth, fears and outdated paternalistic notions about pregnancy still top the charts for scrutiny by the EEOC. I have often cited the EEOC’s six national priorities set forth in its Strategic Enforcement Plan (“SEP”). One such priority is ‘to address emerging and developing issues … including issues involving the ADA and pregnancy-related limitations.’ In this regard, I have also cautioned often about (1) employers not succumbing to myths and fears about disabilities or pregnancy, and not attempting to ‘protect’ a pregnant employee or her fetus; and (2) the EEOC’s penchant for going after the ‘low hanging fruit’ of ADA and pregnancy-related violations by health care or medical facilities.”
An EEOC attorney just commented that “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. Companies must not impose paternalistic notions on pregnant women as doing so can result in unlawful discrimination.”
My previous Takeaway, still applicable, is: Employers must be aware that the EEOC is serious — very serious — about the Pregnancy Disability Act (“PDA”) and the ADA, and that it does not take kindly to best-of-intentioned paternalistic (and outdated) notions advanced by employers that they are acting in the best interests of the pregnant employee.