Articles Posted in Pregnancy discrimination

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pregnant-woman-300x200This month, Connecticut enacted new protections for pregnant workers that address some of the more common abusive employment practices that women face when they are pregnant. The new protections include the following:

  • Employers must provide reasonable accommodations to pregnant workers to enable them to work unless the accommodation would be an undue hardship;
  • Employers cannot refuse to hire a pregnant worker because she needs a reasonable accommodation due to her pregnancy;
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The U.S. Fifth Circuit Court of Appeals in Louisiana recently reversed a trial court’s decision to dismiss a pregnancy discrimination case before trial.  The case involved the law firm Carabin & Shaw’s decision to terminate an employee named Cynthia Heinsohn days after she went out on maternity leave.  The trial court thought no reasonable jury could find that Carabin & Shaw had terminated Heinsohn because of her pregnancy.  The Fifth Circuit found that the trial court had improperly denied Heinsohn her right to a trial.

The trial court, according to the Fifth Circuit, improperly threw out Heinsohn’s case before trial based on an assessment of witness credibility.  The primary purpose of trials is to assess witness credibility.  A judge cannot deny a worker her day in court just because he believes, based on the written record, that the employer’s supposed reason for terminating the worker was non-discriminatory.  When a case comes down to witness credibility, particularly in a case where a jury trial is available, the winner should be decided based on a full assessment of each witness’ credibility by observing him or her testify.

The facts of Ms. Heinsohn’s case are, unfortunately, all too familiar.  Ms. Heinsohn went out on maternity leave and Carabin & Shaw found that some deadlines had been missed which it blamed on Ms. Heinsohn.  Without even asking Ms. Heinsohn about the missed deadlines, it fired her while she was on maternity leave.  According to the Fifth Circuit, there was evidence that Ms. Heinsohn was not responsible for the missed deadlines and a jury could infer that Carabin & Shaw actually terminated her because of her pregnancy.  This type of situation—where an employer fires an employee while she is out on leave—is all too familiar.  When employees go on leave, they often draw the ire of their employers who have to take steps to get the employees’ work done while they are out.

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Senators Jeanne Shaheen (D-NH) and Kelly Ayotte (R-NH) have co-sponsored a bill called the Pregnant Workers Fairness Act. The bill would require employers to provide reasonable accommodations to pregnant employees so that they could continue to work during their pregnancies. Employers have to provide similar accommodations to employees with disabilities and this law would utilize that same accommodation process for pregnant employees.

The Pregnant Workers Fairness Act could require, for instance, an employer to permit a pregnant worker to carry a water bottle with her so that she can drink the amount of water that her doctor recommends. Similarly, it could require an employer to let a pregnant worker who would normally stand to do her job, such as a cashier, to sit on a stool instead.

Senators Shaheen and Ayotte recognize that the Supreme Court issued a ruling earlier this year in a case where a pregnant UPS worker required an accommodation but the Senators believe that the Court’s decision left too many unanswered questions. They believe that this law will make it clear for both employers and workers that pregnant workers are entitled to reasonable accommodations.

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Last week, a federal court in Massachusetts held that a reasonable jury could find that the Salter School discriminated against former employee Victoria Domenichetti because she was pregnant and would need maternity leave. Ms. Domenichetti worked as the Externship Coordinator at the Salter School’s Fall River campus, which is a career training school. The Salter School reduced Ms. Domenichetti’s hours from full-time to part-time shortly after she submitted paperwork requesting maternity leave.

The Salter School argued that a member of upper management, William Anjos, made the decision to reduce Ms. Domenichetti’s hours and he had no idea that Ms. Domenichetti was pregnant and would need maternity leave. As such, according to the Salter School, a jury could not reasonably find that it discriminated against Ms. Domenichetti because of her pregnancy and need for maternity leave because Mr. Anjos had no idea she was pregnant when he decided to reduce her hours. The court rejected this argument. Even assuming that Mr. Anjos didn’t know that Ms. Domenichetti was pregnant, the court held that a jury could reasonably find that the Salter School discriminated against Ms. Domenichetti because Mr. Anjos based his decision on input from someone who did know that Ms. Domenichetti was pregnant and would need maternity leave. Mr. Anjos relied on the input of the Fall River campus President, David Palmer, when he made his decision to reduce Ms. Domenichetti’s hours; there was no dispute that Mr. Palmer knew that Ms. Domenichetti was pregnant and would need maternity leave when he offered his input.

The argument that the Salter School made in this case is not uncommon. In the face of discrimination charges, many employers choose to put forward a person who did not know the complainant well and then claim that he made the decision to take adverse action (such as, termination, demotion, or suspension) against the complainant. The employer will argue that this supposed decisionmaker did not know that the complainant was pregnant, or disabled, or in need of medical leave, or had some other protected trait, and, thus, he could not have discriminated against the complainant because of her protected trait. The problem with this strategy, however, is that managers who do not know an employee rarely take adverse actions against the employee without getting input from a manager who knows the employee and that the employee is pregnant, disabled, in need of medical leave, etc. These managers who provide this input are often the ones behind the discriminatory treatment.

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Last month in California, a federal jury found that AutoZone discriminated against Rosario Juarez, a former employee, because she was pregnant.  The jury awarded Juarez $872,000 for the damages she suffered plus $185 million in punitive damages.

Juarez claimed that AutoZone demoted her from her management position in 2006 after she informed the company that she was pregnant.  Juarez told her district manager that she was pregnant and, according to her, he said “congratulations…I guess” and then said “I feel sorry for you.”  AutoZone claimed that it demoted her because she misplaced $400 in cash.  But the loss prevention officer who investigated the missing money said that he did not think Juarez was to blame for the missing money.

Pregnancy discrimination is unlawful under Maine and federal law.  In Maine, if a jury returned a verdict of $185 million in punitive damages, damage caps in the Maine Human Rights Act would require the court to reduce the award to, at most, $500,000.  While this may seem like a lot of money, to a company like AutoZone–which reportedly pulled in $9.5 billion in revenue between August 2013 and August 2014–$500,000 does not have much of an effect.

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Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on Pregnancy Discrimination and Related Issues which discusses legal requirements under the Pregnancy Discrimination Act (PDA), Americans with Disabilities Act (ADA), and other federal laws.  According to the new Enforcement Guidance, pregnancy discrimination complaints have been on the rise for years, outpacing the steady rise of women in the workplace.

This new Enforcement Guidance provides additional legal support for pregnant employees who need light duty because of physical restrictions related to their pregnancies.  The Enforcement Guidance makes clear that, under the PDA, if an employer permits employees with physical restrictions similar to a pregnant woman to have light duty, it must give light duty to pregnant employees as well.  For instance, if an employer gives light duty assignments to employees with lifting restrictions due to on-the-job injuries, it will need to provide light duty assignments to pregnant employees who have those same lifting restrictions.

According to the Enforcement Guidance, the ADA entitles pregnant employees who suffer from some pregnancy-related medical impairments to reasonable accommodations.  For instance, an employer may have to permit a modification to an employee’s work schedule in order to accommodate her if she has a pregnancy-related medical impairment. The Enforcement Guidance offers the following example of such a situation:

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A new study provides further evidence that employers discriminate against pregnant women when they apply for a job but the study also offers pregnant job seekers helpful tips for getting around the discriminatory biases of employers. The researchers who conducted the study found that pregnant job applicants experienced more hostility (such as rude behavior or prematurely ending of interviews) from employers than non-pregnant job applicants. However, the researchers also found that when pregnant job applicants said things during interviews that addressed some of the more stereotypical concerns about pregnant employees, such as their level of commitment to the job, they were able to reduce the frequency of employers’ discriminatory behavior.

“This study takes the research of discrimination against pregnant women a step further,” said lead author Whitney Botsford Morgan, assistant professor of management at the University of Houston. “We know that this type of discrimination exists. This research helps us understand what can be done to reduce it. Statements that refute stereotypes about being inflexible and lacking commitment are particularly effective.”

It is against state and federal law for employers to discriminate against an employee or job applicant because she is pregnant. Despite these laws, as this study shows, discrimination against pregnant women is common. If you believe an employer has discriminated against you because you are pregnant, you should contact an experienced employment lawyer to learn more about your rights.

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Yesterday, New York City’s City Council passed a law that would prohibit employers from discriminating against pregnant employees just because they need a reasonable accommodation to continue working during their pregnancy. This is an important advance for pregnant employees because, apart from the accommodations that they routinely provide to non-pregnant employees, employers do not have to provide reasonable accommodations to pregnant employees under New York state law or federal law. Under New York City’s new law, an employer would, for example, have to relieve a pregnant employee of certain tasks that required heavy lifting unless doing so would pose an undue hardship for the employer.

While it may seem contrary to common sense, both federal and Maine law do not require employers to provide pregnant employees with reasonable accommodations. As a result, many pregnant women jeopardize their health because their employers won’t provide them with reasonable accommodations. For instance, in New York City, a pregnant retail worker reportedly passed out and needed emergency medical care because her employer refused to permit her to carry a water bottle with her during the work day.

Earlier this year, a bill was introduced in the Maine legislature that was similar to the law passed in New York City but the bill was not passed. There is also a similar bill in Congress called the Pregnant Workers Fairness Act that has not yet gained traction either.

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Last week, Governor LePage vetoed a bill that we previously reported on which would have protected employees who need to breastfeed or express breast milk at work from discrimination. This week, the Maine House failed to override Governor LePage’s veto. The editorial board of the Bangor Daily News expressed its disagreement with Governor LePage on this issue. The Bangor Daily News editorial made the point that the bill which Governor LePage vetoed would have improved the legal process for protecting employees who breastfeed because it would’ve permitted the Maine Human Rights Commission to resolve complaints without the need for a lawsuit.

“If we truly value full equality for working mothers in the workplace, we need effective measures to protect their rights,” said Rep. Anne Graham, D-North Yarmouth, the bill’s sponsor and a pediatric nurse practitioner. “This bill is also needed for the children of working mothers, who also deserve the long-term health benefits that the nutritional and infection-fighting properties of breast milk provide.”

In response to Governor LePage’s rationale for his veto, that Maine law already protects breastfeeding mothers from discrimination, Graham said that the only recourse for a mother whose employer refuses to let her express breast milk at work “is to bring a complaint to the state Department of Labor, if she is still employed, or, if she has lost her job, to ask the local district attorney to bring a suit. In either case, the most severe sanction against the employer is a $500 fine that goes to the state, not the mother. Nothing in current law requires an employer to rehire a worker who was fired for nursing.”

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Thumbnail image for Breastfeeding.jpgYesterday, a bill that would provide further protections for mothers who need to nurse or express breast milk in the workplace passed the Maine House. Maine law currently requires employers to provide accommodations to employees who need to nurse or express breast milk but the penalties for failing to obey this law are very slight. Under the current law, employers face at most a $500 fine and there is nothing in the law that requires an employer to rehire an employee who was fired for expressing breast milk at work.

The bill currently under debate would amend the Maine Human Rights Act so that it would require employers to accommodate nursing mothers in the workplace. If an employer failed to accommodate a nursing mother, it could be held liable for damages it caused to the nursing mother and potentially punitive damages.

“Maine has a rich history of leading the nation on important civil rights protections, but nursing mothers have fallen through the cracks,” said Rep. Anne Graham, D-North Yarmouth, the bill’s sponsor. “Working mothers deserve full equality in the workplace.”