Tuesday, January 7, 2014

A weighty lesson on pregnancy discrimination

It’s the first full week of January, which means that lots of people are attempting to execute on their New Year’s resolutions. Many of those resolutions will focus on weight loss. What if your company does the same, and decides, for wellness or other reasons, not to hire anyone over a certain weight? If your company is in the business of weight loss, like Weight Watchers, for example, such a policy makes a lot of sense. What if, however, that policy results in your company refusing to hire a pregnant woman? Does your “no overweight hires” policy violate Title VII by screening out pregnant women?

According to EEOC v. WW Group (E.D. Mich. 12/2/13), the policy fails as violating Title VII’s proscription against pregnancy discrimination:
On the facts of this case, a reasonable juror could conclude that Broughton’s weight gain putting her above her goal weight was solely attributable to her pregnancy, that this weight gain was totally unrelated to her ability or inability to perform the job (as evidenced by the fact that WW permits pregnant group leaders to continue to conduct group meetings) and that she was wrongly denied the right to apply for a position with WW.
In this case, however, WW’s policy did not cause it’s downfall. WW caused its own downfall through its uneven adoption of two conflicting policies. The EEOC challenged WW’s refusal to hire Wendy Lamond-Broughton as a group leader or receptionist because her pregnancy caused her to weigh-in over her goal weight. According to WW, there are “legal, moral, and ethical reasons” not to hire Broughton, because the public will question its credibility as a company if its own employees appear not to be following the program. Yet, WW does not apply the same rules to those it already employs. If a current employee weigh in over their goal weight as a result of pregnancy, WW does not terminate them, but instead permits them to work until a doctor says otherwise. Thus, because current pregnant, overweight employees can keep their jobs, the “legal, moral, and ethical” business justification for refusing to hire Broughton falls apart.

This case has a lesson deeper than merely, “Don’t have a policy that screens out pregnant women.” If you are going to have such a policy, make sure that you can justify its existence. If WW refused to allow anyone over their goal weight to work for the company, then this case would have ended differently. Once, however, WW allowed some overweight pregnant women to work, it lost the ability to argue that a legitimate, non-discriminatory business reason supported its decision not to hire Broughton.