What’s Expected of You When Your Employee is Expecting

The EEOC has ramped up enforcement against pregnancy discrimination, filing four lawsuits in March 2018 alone. These types of lawsuits can result in expensive consent decrees that also obligate the employer to policy changes and EEOC monitoring.

Making sure that policies and practices mirror what the EEOC and courts expect of employers when it comes to their pregnant employees can prevent EEOC charges and lawsuits (and can help to fight charges and lawsuits that do get filed). So it makes sense to distill some lessons from the mistakes that the EEOC alleges other employers have recently made when it comes to pregnant employees:

Lesson 1: Give pregnant employees the same accommodations you would give similarly restricted non-pregnant employees. If you would give an accommodation to an employee who was disabled or who had an on-the-job injury to help that employee do his or her work, then you should give the same accommodation to a pregnant employee whose pregnancy creates a similar obstacle. This trips up many employers, because it can be counterintuitive: if our policy provides an accommodation but only for those who are injured on the job (not those injured at home), then why would a pregnant employee qualify for that same accommodation? But the EEOC sued a residential nursing care provider on this very basis in E.E.O.C. v. Century Care of Lauringburg, Inc., No. 1:18-cv-170 (M.D.N.C.), presumably relying on the Supreme Court’s decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), which held that an employee can demonstrate  prima facie case of pregnancy discrimination in part by showing that the employer accommodated non-pregnant employees who were similar to the pregnant employee in their ability or inability to work. And the EEOC recently entered into a consent decree over this same issue; the employer agreed to pay $80,000 and to obligate itself to significant policy and monitoring obligations. The consent decree is Document 18 in E.E.O.C. v. Silverado Menomonee Falls LLC, No. 17-cv-1147 (E.D. Wis.).

Lesson 2: Refrain from requiring an employee to take unpaid leave for her pregnancy when you would not require that of a non-pregnant employee with similar medical restrictions. Some employers put employees on unpaid leave out of a good-intentioned concern for the health of the pregnant woman (and the pregnancy), especially when a job has physical aspects like lifting heavy things. But the EEOC sued an employer alleging it had forced an employee to take unwanted unpaid leave in the Century Care case mentioned above and in E.E.O.C. v. Simplicity Ground Services, LLC, No. 2:18-cv-10989 (E.D. Mich.).

Lesson 3: If an employee does take leave, consider any restrictions she has when she returns (and potential accommodations for those restrictions) before terminating her employment. An employer should think carefully about how a pregnant employee could do her job after taking pregnancy-related leave. This can happen when the employee has pregnancy-related complications that require leave (and the employee returns while still pregnant) or when the employee returns after giving birth with restrictions related to the pregnancy or childbirth. The EEOC sued a restaurant for reducing an employee’s hours after she returned from medical leave for her pregnancy complications and for later terminating her employment after her pregnancy leave ended without considering potential accommodations in E.E.O.C. v. Maurizio’s Trattoria Italiana, LLC, No. 18-cv-338 (S.D. Cal.). Recently, the EEOC entered into a consent decree based on this same issue, costing the employer $24,000 and placing significant obligations on it. The consent decree is Document 32 in E.E.O.C. v. Off the Air II, Inc., 3:16-cv-3328 (N.D. Tex.).

Lesson 4: Do not tell an employee that she must choose between her job and her pregnancy—and if the employee reports that a supervisor or coworker does so, investigate and resolve that report. Employers cannot control what every supervisor or coworker says to a pregnant employee about her pregnancy. But if the employee reports what she believes to be inappropriate comments or acts, the employer should follow its policies to investigate that report and to take action to remedy and prevent any discrimination, harassment, or retaliation. The EEOC recently alleged that a supervisor told an employee that she needed to choose between her pregnancy and her job, required her to lift heavy objects after approving lifting restrictions, refused to allow her to take breaks, and scheduled work during previously approved doctor’s appointments in E.E.O.C. v. Dollar Tree Stores, Inc., No. 1:18-cv-49 (S.D. Ga.). The EEOC also alleged that the employee had reported the acts to the supervisor’s manager, but that the manager failed to investigate or resolve the report. It’s crucial to have a policy that prohibits discrimination, harassment, and retaliation based on pregnancy (and any other legally protected characteristic), but it’s equally crucial to have a process for reporting policy violations—and regular training on that policy.