Your employee has just told you she is pregnant. What do you do? Do you:
A. Decide it’s time to celebrate, throw a party and buy lots of booties;
B. Fire her once she’s five months pregnant. That’s your company’s policy.
C. Congratulate her, ask her when she is looking to go out on leave, if she needs anything and refer her to HR to deal with all other details;
D. Require a doctor’s note clearing her to continue work, tell her the requirement is non-negotiable and fire her if she doesn’t comply.
I hope most of you know the right — or at least the best–answer, which is Choice C. While some co-workers do throw baby showers, that is not necessary and that does not really address the myriad employment-related issues that may arise as a result of the pregnancy. What about Choices B and D? You might be thinking, “Isn’t it obvious that neither option is appropriate?” Apparently it is not so obvious to everyone, so today I will discuss How NOT to handle an employee’s pregnancy, using 2 real, live case examples.
In our first example, A Plus Caregiver Solutions, Inc., a supplier of direct professional caregivers to clients with disabilities, had allegedly, since 2010, required all its female employers to sign a pregnancy policy. Per that policy, a pregnant employee’s employment was terminated once they reached their fifth month–whether or not they were able to perform their essential job functions. The EEOC brought suit on behalf of the Charging Party and several other female employees terminated due to their pregnancies in accordance with the policy. On August 28, A Plus agreed to pay $200,000 and agreed to refrain in the future from removing any employees pregnant employees due to their pregnancies and from requiring them to disclose their pregnancies. The company also agreed to rescind its policy, issue letters of apology to all affected employees, and to hire an Equal Employment Opportunity consultant. The settlement also requires the company to train its executives and HR staff on Title VII requirements and prohibitions against pregnancy discrimination and to post an anti-discrimination notice and allow the EEOC to monitor its compliance with the settlement.
Before I make any comments, let’s look at our second real, live case example. On the same day as the A Plus settlement, the EEOC filed suit against Azul Wellness, LLC, a massage therapy treatment provider, which required a pregnant employee to provide a doctor’s note clearing her for work. The employer insisted on this “non-negotiable” requirement, even though the employee was not asking for any accommodations. The employee returned for her next scheduled shift and was handed a termination letter, dated three days after she notified her employer of her pregnancy. The EEOC is seeking back pay and compensatory and punitive damages for the employee, as well as appropriate injunctive relief to prevent any further discriminatory practices.
You probably can see why I name these cases as examples of how NOT to handle an employee’s pregnancy, and I know I’m repeating myself, but, well, it seems necessary. You can’t fire an employee just because she’s pregnant. You also can’t require a doctor’s note just because an employee is pregnant. First, the Pregnancy Discrimination Act (PDA) prohibits discrimination against any applicant or employee based on her pregnancy (or even perceived pregnancy or childbearing plans). Second, pregnancy in and of itself is not a disability. Complications arising out of pregnancy may be, in which case an employer with 15 or more employees will be obligated to engage in the interactive process with the employee and attempt to provide a reasonable accommodation. The PDA itself also has similar requirements. While neither of the cases even suggest that any of the employees in question sought accommodations under either statute, this employer made it clear it was not interested in engaging in the interactive process to provide accommodations.
Both of these employers had rigid policies and applied them in inflexible ways. Those are both big, red flags to the EEOC, and rightly so. Now, there are some times when it is appropriate to put a pregnant employee out on leave early. If an employee, by reason of her pregnancy cannot safely perform her essential job functions, and you are unable to provide a reasonable accommodation that eliminates the safety risk, then it is probably appropriate to put the employee out on leave early. Even if you do have an employee go out on leave early, you will most probably have to hold her job open for her. You cannot terminate her–unless she is unable to return to work.
What CAN you do? First, if you don’t have any relevant policies this would be a good time to write and implement them. If you do have them, this would be a good time to review them. Whatever you do, make sure to apply them as consistently as you can. For any accommodation requests, treat your pregnant employees’ requests the way you would treat similarly-situated non-pregnant employees. Engage in an interactive process at least similar to that required under the ADA. That should be enough to get you started, so I’ll end here for now.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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