Pregnant? We Are Placing You On Unpaid Leave For Your Own Good
I’ve posted a lot about pregnancy discrimination under Title VII, which forbids employers from, among other things, discriminating against pregnant employees purporting to use concerns about their health or safety. The Pregnancy Disability Act (“PDA”) of Title VII is often invoked by pregnant employees who are fired because the employer feels that she should not be working – either for her own health or the health of the fetus.
“Who do you suppose has been put on involuntary pregnancy leave?”
I posted last May that “[t]he EEOC is keen to pursue such cases.”
Indeed they are.
The EEOC filed a new case alleging that an employee at a Motel 6 in New Orleans informed her employer that she was pregnant and that it was a “high-risk” pregnancy. When she later called her manager and told him that she could not work the day because of a pregnancy-related illness, he responded that he was “modifying the work schedule and taking her off the schedule for the entire week, despite the fact that she only needed one day off.” She was later “placed on a leave of absence until her pregnancy was over,” although she never requested this.
A “forced leave of absence without pay due to her pregnancy” – this is what the EEOC alleged in the lawsuit was violative of Title VII.
I wrote on November 20, 2015 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 An EEOC attorney said then that “Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”
Not long ago the EEOC announced the settlement of a PDA case where 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 had to pay $45,000 in settlement.
The EEOC’s press release stated then 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.”
“Its for your own good!”
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.”
Bonus for NYC employers: Repeating what I posted in May, the New York City Commission on Human Rights published its “Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22),” which I said is a must-read for NYC employers.
It sets out what is considered pregnancy discrimination under NYC law – which is must broader than under Title VII and much more broadly construed. It discusses things like best practices, reasonable accommodation, and the interactive or “cooperative” process.
With the NYC Commission’s Enforcement Guidance, you can bet that employers will be ever more in the cross-hairs of all levels of government when it comes to issues of pregnancy discrimination.