Suppose you Hire a Retail Operations Manager in your company, and you learn she is pregnant, and the pregnancy is High Risk. Then the employee suffers a miscarriage and other complications. What do you do? Do you badger her about missing work due to medical appointments and treatment? I would hope not. Do you give her a hard time when she returns to work? Again, I hope not. Read on to learn what else not to do and what you should do instead. Yes, I do have a real case for this scenario. This one involves Ulta. Believe me, I didn’t make-up this one (See what I did there–and with the title? I can hear you groaning.) The name of the case is Guirk v. Ulta Salon, Cosmetic & Fragrance. Here’s what allegedly went down:
In December 2019, Alexa Guirk began working at Ulta as a Retail Operations Manager. In approximately February 2020, she learned she was about 4 weeks pregnant, and that her pregnancy was “High Risk”, and that she would require close monitoring by her doctor. Ms. Guirk told her manager. In March, Ms. Guirk suffered a miscarriage and complications. She learned she had had an ectopic pregnancy. As a result of the miscarriage and complications, she needed further treatment, including chemotherapy. She kept her manager informed of everything, including her appointments and when she would be unable to work, and used vacation and sick time. The manager repeatedly told her that she (the manager) had had a miscarriage and never missed work because of it, that she was back to work the day after her miscarriage. Ms. Guirk suffered side-effects from chemotherapy, sometimes rendering her too ill to go to work. In June she needed surgery and she became ill after the surgery, requiring her to miss two days of work. The manager allegedly told her that after her own miscarriage she was “fine” and didn’t understand why Ms. Guirk had to miss so much work.
Ms. Guirk contacted Human Resources to complain about the harassing demeaning behavior she experienced from her supervisor. H.R. told her to contact her District Manager and to go back to HR if the District Manager didn’t resolve the issue. Ms. Guirk reached out to the District Manager via phone and email, but, allegedly, the District Manager did not respond. Ms. Guirk then resigned and filed suit, alleging pregnancy and disability discrimination, as well as constructive discharge and aiding and abetting discrimination (this count applied to the District Manager) under the New Jersey Law Against Discrimination.
Since Ms. Guirk just filed suit this month, it will be a while before we see what happens with the case. What can we learn from what has already happened, though? Well, first, let’s look at what not to do.
First and foremost: Do not belittle any employee with any medical condition, whether pregnant or not, or make any derogatory comments if they need time off for medical appointments or treatments. That this manager had herself suffered a miscarriage gave her no right to say what she allegedly said. Each person is different and therefore each person will respond differently to pregnancy, miscarriage, and or complications or other medical conditions. Federal law would prohibit any harassment/discrimination under the Pregnancy Discrimination Act and very likely, under the Americans with Disabilities Act. Additionally, this employee, had she been working for Ulta longer, would probably have qualified for intermittent leave under the FMLA. This manager’s behavior would probably have supported an FMLA interference/retaliation claim had the employee been eligible. In this case, the employee filed state law claims.
Second: Don’t brush off any employee’s complaints of harassment/discrimination. Assuming the allegations, in this case, are true, both HR and the District Manager bear responsibility. HR’s job is to investigate discrimination/harassment complaints and apparently made no effort to do its job. The District Manager, in failing to return emails and phone calls, effectively was complicit in Ms. Guirk’s supervisor’s behavior–hence the count of aiding and abetting discrimination.
Now, that we know what not do to what should you actually do? Here are some ideas:
- Have clear policies against any kind of harassment/discrimination — and enforce them;
- Train your managers on these policies, and hold them accountable for adhering to them;
- Make sure your employees know how and where to report any such complaints — and take prompt action, starting with a thorough investigation;
- Reach out to in-house or your friendly local employment counsel for guidance.
Seriously folks, with a pandemic that’s been with us for almost a year, don’t we have enough to address, without allowing behavior that we all know (or should know) is patently illegal?
Hopefully, I’ve made my point. See you next week.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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