Pregnancy discrimination charges have increased 23% since 2005. The EEOC (Equal Employment Opportunity Commission) recognized this increase in pregnancy discrimination charges and announced a Strategic Enforcement Plan in September 2012. The Plan aims to target employers who illegally discriminate against pregnant employees, in addition to other emerging issues. The EEOC plans to classify any pregnancy discrimination complaint as a “Category A charge.” This means that the EEOC will focus their attention and resources on these claims. Specifically, the EEOC is communicating that employers need to accommodate pregnancy in the workplace. In support of the Plan, the EEOC filed four pregnancy discrimination lawsuits in September 2012 alone.

Execution of the EEOC’s New “Targeting” Plan

According to the EEOC’s complaint in EEOC v. JC Wings Enterprises, LLC, d/b/a Bayou City Wings, the employers’ handbook specifically instructed their mangers to fire pregnant women three months into their pregnancies. The restaurant stated that retaining pregnant women at work any longer than three months would be irresponsible to the safety of the child and customers preferred being waited on by non-pregnant waitresses. Management also conveyed that firing pregnant women was to serve as an example to other employees.

Another example of the EEOC cracking down on pregnancy discrimination in September 2012 was in EEOC v. S.T.L. I, Inc. d/b/a J’s Seafood Restaurant of Panama City. Here, the employers fired two employees shortly after discovering their pregnancy because the women would have been a “liability” to the company.

The EEOC is hoping these lawsuits deter other employers from engaging in pregnancy discrimination, in addition to revealing that pregnancy discrimination is one of the EEOC’s top priorities.

Protection of Pregnant Women

Pregnant women are protected from discrimination in the workplace under three federal laws: the Family Medical Leave Act (FMLA) of 1993; Title VII of the Civil Rights Act, passed in 1964; and the Pregnancy Discrimination Act (PDA) of 1978. Together, these laws assert that a pregnant woman is entitled to continue working, as long as she is capable of doing her job, and may return to her job after the pregnancy when released by her doctor. Refusal to honor these rights may result in serious consequences to the employer.

  1. Under the PDA, if an employer provides any benefits to workers on leave, the employer must provide the same benefits to those on leave for pregnancy-related conditions.
  2. Additionally, according to Title VII, pregnancy cannot be a factor in determining whether to hire or fire a woman, and a pregnant worker cannot be retaliated against because she is pregnant or filed a charge of discrimination.
  3. Furthermore, under the FMLA, an employee is allowed 12 weeks of unpaid leave.

Insights for Employers

  1. Employers should avoid establishing pregnancy or pregnancy-related policies in their employee manuals, or any other company documents, unless it is for the sole purpose of restating the employee’s rights under the FMLA, Title VII, or the PDA.
  2. Train all managers and supervisors about the legal obligations to, and treatment of, pregnant workers, as well as consequences in failing to abide by these legal obligations. In doing so, lay out examples of prohibited conduct (including, but not limited to, the following):
    1. Treat pregnant employees the same as non-pregnant employees;
    2. Do not deny requests for time off if allowed by FMLA;
    3. Provide the same accommodations that are provided to other employees;
    4. Do not fire, or refuse to hire, a women based upon the fact that she is pregnant;
    5. A women shall not be retaliated against for any reason related to her pregnancy; and
    6. Time off for an employee’s pregnancy, or time-off related to pregnancy, should not be used in the employee’s evaluations.
  3. Ensure all managers and supervisors comply with all federal laws.
  4. A customer preferring non-pregnant women to pregnant women is not a valid reason to discharge the pregnant women.
  5. Hiring:
    1. It is inappropriate to ask an applicant about children, pregnancy, and plans to start a family. Such action may show pretext for pregnancy discrimination if a lawsuit should arise.
    2. There should be no differentiation in the terms and conditions of employment between two individuals who are equal in all work-related qualifications, even if one individual is pregnant.
  6. Respond to employee complaints effectively and efficiently, and make sure all procedures are well documented.

Please contact a Gjording Fouser lawyer if you would like any additional information about this topic or any other employment issues facing your company.