Be Careful What You Say when Discussing a Worker's Pregnancy: Lessons from a Recent Court Case

Accommodating pregnancy—how to handle physical limitations, leave requests and discharge issues legally and effectively
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Human Resources

Be careful what you say when discussing a worker's pregnancy: lessons from a recent court case

Generally, when the same supervisor who hired someone also made the decision to fire someone, courts apply a concept called the "same-actor theory." It usually leads to the conclusion that if the same person who hired someone also fired him or her a short time later, it probably wasn't because of some sort of discrimination.

But if the employee's protected characteristic was hidden, the same presumption doesn't apply.

Take, for example, a new hire who announces she is pregnant and finds the supervisor who hired her suddenly becomes highly critical of her performance and then fires her. The fact that he "discovered" her protected characteristic after he hired her means she can argue the same-actor theory doesn't apply.

Pregnancies can set into motion a complicated mix of responsibilities and risks for your organization. Recent pregnancy discrimination cases have resulted in high-profile, enormous awards against employers—including a $185 million jury verdict against a company. Every HR professional needs to get up to speed on the latest laws, court rulings and best practices for accommodating expectant and new parents.

Recent case: Jessica, an attorney, interviewed for a position with the Stockton Office of Violence Prevention, an agency that seeks to reduce violence in the city. Jessica was one of the finalists for the spot. Her eventual boss concluded that Jessica was a "particularly qualified candidate" with a "unique combination of management and academic skills."

She received a job offer. Jessica signed the offer letter during a meeting with her new supervisor.

She then informed him that she was pregnant. He expressed surprise and told her that for him, "family comes first." He added that his own wife—also an attorney—stayed home to care for their children. He added that he thought child care was a full-time job.

Once Jessica began working, she received a lot of praise for her initiative and her hard work from colleagues at the agency and from the public in general. However, her supervisor repeatedly mentioned "family comes first" throughout her tenure.

Then, even though he had not conducted a performance review or provided any feedback, he terminated her when she was eight months pregnant. He said he felt Jessica's management style wasn't right for the agency.

Now is a CRITICAL time to avoid mistakes with pregnant employees! The EEOC announced in its new Strategic Enforcement Plan that they're ramping up their focus on pregnancy discrimination. The EEOC recently filed a string of pregnancy discrimination lawsuits against employers … and there's no sign the agency is slowing down. Get all your questions answered by an expert in the field, attorney Raven Applebaum of top employment law firm Ogletree Deakins.

But that wasn't the end of the matter. After the supervisor announced that Jessica was no longer employed with the agency, he told staff members that Jessica had resigned to spend time with her family. He repeated his motto that "family comes first."

Jessica sued, alleging she had been terminated because she was pregnant.

The agency tried to argue that the same-actor presumption applied—that it made no sense for the same person who had hired Jessica to have fired her for discriminatory reasons.

The court said the defense wasn't available since the supervisor had hired Jessica before he knew she was pregnant. Consequently, there could be no presumption that discrimination was not a factor in her termination. Plus, the constant comments about family coming first—including using the phrase when announcing that Jessica was leaving in order to spend time with her family—could be interpreted as sex discrimination.

The court cleared Jessica's lawsuit to go to trial. (Glynn v. City of Stockton, No. 2:15-CV-00529, ED CA, 2016)

Final note: Warn managers and supervisors against making negative comments about pregnancy or sharing their parenting ideas at work. That's especially true if a subordinate is pregnant and the comments suggest disapproval of new mothers who continue working after giving birth.

Simply put, the only thing supervisors should say about an employee's pregnancy is, "Congratulations!"

Join us Friday, May 12, for Baby on Board: HR, Pregnancy & Accommodating Moms. You'll discover how to properly handle challenges such as:
  • How must you accommodate the Raven Applebaumemployee's physical limitations?
  • How should you handle leave requests?
  • What about discipline and discharge issues?
  • When can you require the employee to return?
Join us May 12 to train yourself and your supervisors how to do the right thing and stay out of court!
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