Pregnancy Discrimination, Quirky Question # 137

Quirky Question # 137:

Our company recently hired a woman to manage our clean room.  This job is critical to our business and we spent a great deal of time finding someone who we thought would be the right person for bringing a new product to market on a critical time path.  In addition to supervising the employees in the room, she is also required to work alongside them.  Some of what she is required to do involves heavy lifting, and certain steps in the process involve potentially toxic chemicals.  Imagine our dismay when she announced only two weeks into the job that she was three months pregnant.  She didn’t say anything about this during the interview.  We are worried about our legal exposure if she is injured, but also the project may be negatively impacted if she is gone for an extended period of time, and who knows if she’ll come back once the baby is born.  She is an at-will employee.  Can’t we just fire her now before we invest any more time in training her?

Dorsey’s Analysis:

By:  Karen Wentzel

This is a composite of questions I’ve been asked over the past few months. While you may have sympathy for the employer’s plight here, if you think the response should be – “Go ahead and fire her!” – you may soon be joining the ranks of defendants in discrimination lawsuits. The example points out the importance of not stereotyping your employees based on what you think is best for them, even if you do have the best of intentions.

First, to review the basics as we’ve done here before (use the “View By Topic” tab to the upper left and scroll down to Joint Employer Liability, Quirky Question # 70): California law, like the federal Title VII, prohibits discrimination on the basis of sex. Under California law, sex is defined to include pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. What this means is that, as with other protected categories under state and federal law, it is important that an employer not take any adverse employment actions against a worker “because of” her pregnancy. An adverse employment action can include something drastic, as in this example, terminating the person’s employment, but in some circumstances also could include taking other less drastic measures. For example, the U.S. Supreme Court has pointed out that changing a woman’s schedule so she can no longer pick up her kids on time can be an adverse employment action if taken in retaliation for the woman sticking up for her rights.

In addition to prohibiting discrimination on the basis of pregnancy, California law also requires an employer to provide up to four months’ leave for a woman disabled by pregnancy. Further, under California law, the employer is required to transfer a woman to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, and if the transfer can be reasonably accommodated.

While the employer in our example might think that it is doing the employee a favor and “protecting her” while doing what it thinks is best for its business, the courts (and juries) will likely see it differently. In a case before a California appellate court just last year, Sasco Electric v. California Fair Employment & Housing Commission (2009) 176 Cal.App.4th 532, the employer appealed an award of back pay plus over $100,000 in emotional distress and punitive damages in favor of an employee who was fired after becoming pregnant. The woman, Zibute Scherl, was hired as a deckhand on a corporate yacht used to entertain clients. She had extensive experience as a deckhand and second captain on a variety of other boats, and was licensed by the U.S. Coast Guard as a Merchant Marine. Within nine months, she had been promoted to second captain. The captain of the boat described her as “the hardest working, responsible, boat savvy individual to work with me during my seventeen years on this vessel.”

Shortly after being promoted, she married. When the executive director of the company congratulated her on her marriage, he reportedly told her, “Whatever you do, don’t get pregnant.” When she became pregnant a few months later, the captain of the boat expressed his disappointment because “in his experience, mothers do not want to work in the boating business,” and he was worried about liability based on her exposure to chemicals and fumes as well as the potential that she might slip and miscarry. He demanded that she get a release from her doctor to continue working.

Scherl asked her doctor for a release, which he provided, stating that she was not incapacitated and did not have any work restrictions associated with her pregnancy at that time. Her physician noted that once her pregnancy was further along, she should not work where she could get knocked over, and should not be out to sea for several days at a time. Even before she could submit the release to her employer, however, the company conducted a sudden reduction in force and she was laid off. The captain admitted that he chose her for lay off because he was “concerned about her still being cavalier about working on the boat for too long when she was pregnant,” and he told another crew member that the boat was unsafe for a pregnant woman. Not long after this supposed reduction in force, the captain hired a new crew member with no prior experience, and brought back another employee who had been laid off. Scherl sued. The California Fair Employment and Housing Commission found she had been terminated because of her pregnancy, and awarded her damages.

The employer appealed, but the appellate court took no time upholding the award, finding there was substantial evidence that Scherl was terminated because of her pregnancy, that the supposed reduction in force was pretextual, and that her back pay damages were appropriate because she was not disabled at the time she was chosen for lay off. The appellate court also found that the company provided no evidence that she could not have been reasonably accommodated by a temporary transfer to a less strenuous or hazardous position.

The company’s short-sighted decision in this case – to conclude that they knew better than Scherl and her doctor what was best for her – not only led to an expensive lawsuit, but also the loss of “the best [worker the captain] had ever seen” in that job.

So what about our example? The employer can certainly request that the recently hired woman provide a doctor’s note about any possible restrictions on her ability to work, particularly as to heavy lifting and exposure to toxic chemicals. Once armed with this information, the employer can evaluate whether the restrictions, if any, can be reasonably accommodated for the period of time the employee is disabled by pregnancy. There may be situations in which no accommodation is possible (for example, if a woman is hired to do a specific job taking place in a certain timeframe when she will now be out on leave and there are no other jobs available), but these will likely be few and far between.

When the company hired the person in our example, they identified her as the best person for the job. That did not change when she became pregnant. Making decisions about her future employment based on stereotypes about what a woman will or won’t do during or after her pregnancy, even if done with the best intentions, is a slippery slope that very well may lead to costly litigation and the loss of a good employee. Proceed with caution.

Dorsey & Whitney

Dorsey & Whitney

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