How NOT to respond to an employee’s pregnancy

If an employee with low sales numbers announces her pregnancy, do you:

1. congratulate her and continue to treat her the same as before the announcement, or
2. ask others, “What are we going to do about that?”

According to the plaintiff in Majer v. Lexion Medical, her employer chose option 2, and will pay the price for it.

When the court put that damning statement together with evidence that the employer did not terminate at least one non-pregnant employees with worse sales numbers than the plaintiff, it concluded that it had “serious doubts” about the legitimacy of the decision-making process that led to the termination. In more technical terms, it denied the employer’s motion for summary judgment, sending the case to a jury trial.

As long as managers and supervisors make these types of comments, I won’t worry too much about the viability of my chosen line of work.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:

[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 

The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.

Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.

Ohio Supreme Court rules that employers do not have to provide pregnant employees greater leave rights than non-pregnant employees

Yesterday, the Ohio Supreme Court handed businesses a huge victory on the issue of pregnancy leave rights.

Pataskala Oaks Care Center had a written policy that required all employees to work for a year before becoming eligible for leave for any reason. It fired Tiffany McFee three days after she gave birth because she was absent from employment before she had become eligible for leave under that policy. McFee sued for sex discrimination. The court of appeals held that Ohio’s antidiscrimination laws require that employers provide employees with a reasonable period of maternity leave, and the at-issue policy that denied McFee leave was direct evidence of sex discrimination.

In McFee v. Nursing Care Mgmt. of Am. (6/22/10) [pdf], the Ohio Supreme Court disagree, and held:

An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination….

In reaching this decision, the Court pointed out that the pregnancy discrimination laws do not require preferential treatment for pregnant employees. They merely mandate that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work. Because the at-issue length-of-service requirement is pregnancy-blind—it treats all employees the same by requiring every employee to 12 months of employment before becoming eligible for leave—it is not direct evidence of sex discrimination.

The court also harmonized Ohio’s pregnancy discrimination regulations on mandatory maternity leave—Ohio Adm. Code 4112-5-05(G)(2) and (G)(5).

• (G)(2) provides: “Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”
  
• (G)(5) provides: “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing.”
  

The Court recognized the potential tension between these two provisions. (G)(2) appears to indicate that a policy providing no leave is discriminatory, while (G)(5) states that a uniform minimum-length-of-service requirement for leave eligibility is permissible. But:

Reading these rules in light of the statutory purpose, Ohio Adm.Code 4112-5-05(G)(2) must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition…. This interpretation of the rule harmonizes (G)(2) with (G)(5), which specifies that when a woman qualifies for leave, the leave provided for childbearing must be reasonable.

Thus, an employer may terminate a pregnant employee who has not yet met a minimum-length-of-service requirement under a neutral leave policy. There are a three key takeaways for employers from this case.

1. Leave policies must be neutral. An employer cannot have a maternity leave policy with a length-of-service requirement, and a different leave policy for other situations with no length-of-service requirement, or one of a shorter duration.
   
2. Employers do not have to offer maternity leave to employees. However, if leave is offered for any reason, it must include maternity leave in at least the same amount and on the same conditions as other types of leave.
   
3. Merely having a neutral policy does not grant an employer carte blanche to terminate pregnant employees or new moms. The policy must still be applied equally to all employees with similarly disabling conditions. If new-employee Bill in accounting needs six weeks off to recover from back surgery, you cannot let Bill take the time unless you are prepared to similarly ignore the length-of-service requirement for all pregnant employees. Otherwise, you are opening yourself up to a claim of pretext—that the application of the facially neutral policy is a pretext for pregnancy discrimination.

Do we really need to pump up workplace lactation rights?

Philly.com ran a story last week by Philadelphia attorney Beth Thorne, who recounted her lack of privacy at work to express breast milk. Ohio, like Pennsylvania, is in the majority of states that do not have a law that requires employers to accommodate lactating moms. Some Ohio legislators want to change this omission.

A bill has been drafted – but not yet introduced – that would amend Ohio’s discrimination statute to include “lactation” as a protected class. This law would expand the prohibition against discrimination because of or on the basis of sex to include discrimination because of or on the basis of lactation. It would also require employers to provide lactating employees “reasonable, unpaid time each day” for the expression of breast milk, and further require employers to make a reasonable effort to provide a sanitary room or area (other than a toilet stall) for this purpose.

While this law is noble in purpose, I question whether it is needed in the first place.

• Ohio’s law against sex discrimination likely already covers lactation. In Allen v. totes/Isotoner Corp., two of the most conservative justices of the Ohio Supreme Court concurred that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. While the majority dodged this issue, the Court gave clear direction of how it rule if the issue arose again. We should not be in the business of unnecessarily amending laws.

• Is this really a problem that needs to be fixed? Are lactating employees really being denied the opportunity to pump? The empirical evidence would suggest that the answer is no. In my 13 year career I’ve never come across the issue. LEXIS reveals scant few cases on this topic, even in jurisdictions that have workplace lactation laws. So, if this is not a problem that needs correction, what reasons – other than placating certain special interests – call for the passage of workplace lactation legislation?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Have you thought about these four issues before you fired that employee?

BLR’s HR Daily Advisor recently published a helpful checklist of the 10 Questions You Must Ask Before Firing (part 1 and part 2). I have synthesized the list into four key considerations:

1. Have you followed your own documents? There are several documents that inform the employment relationship – handbooks and other policy manuals, and contracts, both with individual employees and union agreements. Any well-written handbook should have a disclaimer that it is not a contract, that it is not binding on the company, and that the employee should not rely on it as such. Companies should nevertheless be careful to ensure that if it deviates from a policy, it has a good reason to do so an a history of similar deviations in similar circumstances. Union agreements have their own unique set of issues. Does the contract allow for termination? If so, are there rules or processes that must be followed? Are you acting out of an anti-union animus?

2. Have you been consistent? Consistency is paramount in any employment decision, and will go a long way to dispelling inferences of discrimination. Consistency looks at how you treated similarly-situated employees in similar circumstances. Two special circumstances merit mention. Retaliation is the single biggest employment practices risk facing employers today. If an employee has recently engaged in protected activity, triple-check to make sure the rest of your house is in order before terminating. In Ohio, pregnant employees gain special rights on their first day of employment, and have to be given their job back the expiration of maternity leave.

3. Do you have a well-documented business reason for the termination? When an employer relies on undocumented accounts of misconduct to support a termination, it is fair for a court or jury to infer that those accounts were created post-termination and question their legitimacy. So, have all performance and other problems with the employee been documented? Has the employee signed off on the record, or has it been documented that the employee refused to sign?

4. Have you been fair? This is the most important reason. Lawyers spend months, and sometimes years, preparing their case for trial. A trial lasts days, sometimes weeks. During that trial, the jury will hear from countless witnesses and see myriad documents. Every piece has been carefully laid out by the attorneys to make the most persuasive presentation possible. Jury instructions will be carefully drafted to ensure that the jury is given the correct law to apply to the case in reaching its decision, And, that jury will listen to bits and pieces and retain even less. At the end of day, no matter what the jurors are told, I believe that in most cases, the decision will come down to one fundamental question – was the employee treated fairly? If that juror, or his or her wife, child, or parent, was treated as the plaintiff was treated, would that juror believe he or she had gotten a fair shake, or was mistreated? At the end of the day, how you answer this question will most likely signal how you decision will be judged.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Proposed law would grant working moms breastfeeding rights

Last year, I wrote that even though Ohio has one of the country’s most liberal breastfeeding laws, it likely does not protect a mom’s workplace lactation rights. Moreover, few courts have protected breastfeeding and expressing breast milk under current workplace sex discrimination laws.

A potential new federal law could change all that. Identical bills have been introduced in the House and Senate that would require employers to accommodate working moms’ breastfeeding needs at work. The Breastfeeding Promotion Act [PDF] would make three significant changes to existing laws:

• Amend Title VII to include lactation (breastfeeding or the expression of milk) in the definition of sex discrimination.

• Amend the Fair Labor Standards Act to require that employers provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth”, and make “reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion” for an employee to express breast milk.

• Amend the Internal Revenue Code to provide a tax credit for employers that provide an appropriate workplace environment for employed moms to breastfeed or express milk.

It’s difficult to say how much traction the BPA has, but this bill is definitely one that warrants watching.

[Hat tip: World of Work]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How to layoff the protected

Sunday’s New York Times ran an articles called When the Stork Carries a Pink Slip. It makes the point that there is nothing illegal about including pregnant women or women on maternity leave in a layoff. The same holds true for minorities, those over 40, the disabled, those out on FMLA leave, or anyone who happens to find themselves in any of the other groups protected by state or federal discrimination laws. What is illegal, however, is to include a pregnant women in a layoff because she’s pregnant.

Layoffs are supposed to be blind at to issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before a layoff is implemented, it is crucial to review the demographics of who is staying and who is leaving:

1. You want to make sure that neutral selection criteria do not have a disparate impact on a particular protected group.

2. You want to make sure that it does not look like the layoff targeted a particular protected group.

3. You want to identify those risky inclusions (such as the new mom on maternity leave or the employee with a history of FMLA-leaves) who may need some additional incentive to sign off on a severance agreement and release.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Maternity leave issues continue to confound employers

Maternity leave is one of the most misunderstood employment law issues for businesses. Two laws generally govern workplace maternity leave. First, the Family and Medical Leave Act, which mandates 12 weeks of maternity leave for employees who worked at least 1,250 hours in the prior 12 months for businesses with 50 or more employees. Secondly, the employment discrimination laws require that pregnant women be treated no differently than people with similarly debilitating conditions.
Ohio employers often misbelieve that if they are too small for FMLA coverage or if the FMLA does not cover a specific employee, they can deny maternity leave under a neutral leave of absence policy. As Nursing Care Mgmt. of America v. Ohio Civil Rights Commission (Licking Cty. 3/11/09) illustrates, under Ohio law employers that do not give all pregnant employees a reasonable amount of maternity leave, regardless of the employer’s leave policy, act at their own peril.
Pataskala Oaks Care Center had a neutral leave of absence policy that provided 12 weeks of leave for those employees with at least one year of service. After working at Pataskala Oaks for eight months, Tiffany McFee provided a note from her doctor stating that she was medically unable to work because of pregnancy-related swelling, and that she could return to work six weeks after delivery. Pataskala Oaks terminated her employment three days after delivery because she did not qualify for leave under its policy. The appellate court ruled that Pataskala Oaks committed unlawful sex discrimination by not granting McFee a reasonable maternity leave.
Ohio has specific regulations that cover maternity and childbirth leaves of absence – Ohio Admin. Code 4112-5-05(G). The key part of that section provides:

(2) Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.

Pataskala Oaks argued that it had a leave policy, but McFee did not qualify under it because of her short tenure. The Court did not buy Pataskala Oak’s argument:

Termination of an employee disabled due to pregnancy is prohibited if the employer provides no maternity leave or insufficient maternity under its employment policy. In this case, it is undisputed that Pataskala Oaks had no maternity leave available to McFee at the time of her pregnancy disability….
Pataskala Oaks does not deny that McFee requested maternity leave, and that it terminated McFee without providing her maternity leave for a reasonable period of time. Pursuant to 4112-05-05(G)(2) such termination “shall constitute unlawful sex discrimination”.

This case is important for all Ohio businesses. Ohio law requires that all pregnant employee be provided a “reasonable” maternity leave, regardless of the the employer’s size, the employee’s tenure, or the language of a leave policy. If an employee asks for maternity on her first day of employment, it must be given and she must be restored at the end of the leave. The open issue is what “reasonable” means. Is it a fixed amount of time? Set by a doctor’s certification? Does it include bonding with a newborn or is it limited to medical necessity? These open questions will be answered on a case-by-case basis. What we know for sure is that zero maternity leave is a quick road to liability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.
For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? The Pregnancy Discrimination Act at 30

Do you know? The Pregnancy Discrimination Act turned 30 years old last week. The PDA outlawed employment discrimination on the basis of “pregnancy, childbirth, or related medical conditions” as unlawful sex discrimination. It does not require that employers give pregnant women preferential treatment (that, after all, would discriminate against men), but it does mandate that pregnant women be treated as would any employee with a similarly disabling temporary condition. Yet, despite being ingrained into our way of thinking that pregnancy discrimination is wrong, the number of claims filed with the EEOC continue to rise. In 2007, pregnancy discrimination filings with the EEOC hit an all-time high of 5,587 (source: Time Magazine).

According to a study published by the National Partnership for Women & Families, the number of claims might actually be higher, as women may under-report pregnancy discrimination out of fear of causing long-term career damage. Who knows if this conjecture is true. What is true, however, is that employees, regardless of gender, have the right to have a career and a family and not be punished for the choice. The sooner businesses recognize this undercurrent of potential bias the sooner they can put measures in place to prevent pregnancy discrimination from becoming a potential problem area.

Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.

A lesson in how not to handle a pregnant employee

"Being pregnant here - it's like wearing a scarlet letter 'P' on your chest," said Lori Ann DiPalo, 36, the MTA Bridges and Tunnels officer. The New York Daily News reports that DiPalo's physician certified the 10-week pregnant officer as fit for duty without restrictions. Nevertheless, she was stripped of her badge and gun and and banished to tollbooth duty.

A doctor for Bridges and Tunnels read DiPalo's file and decided she shouldn't carry a gun.

"When I asked why, they said they didn't want to risk abdominal injury or me having to use 'deadly physical force,'" she said.

So DiPalo - unarmed but in uniform - now stands in a bridge tollbooth from 11 p.m. to 7 a.m. collecting tolls. ...

In her six years as a peace officer, DiPalo has arrested frauds, drunken drivers and other people who had noright to be behind the wheel. She has dispatched officers, handled roll call and patrolled the vulnerable bases of various bridges and entrances to tunnels - considered key targets for potential terror attacks.

"I like my job. I want to work. My doctor said I can," she said.

This paternalistic decision making is exactly the type of employment practice the EEOC sought to combat in drafting its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Per the EEOC:

Employers can also violate Title VII by making assumptions about pregnancy, such as assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks. As the Supreme Court has noted, "[W]omen as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Title VII's prohibition against sex discrimination includes a prohibition against employment decisions based on pregnancy, even where an employer does not discriminate against women generally. As with other sex-based stereotypes, Title VII prohibits an employer from basing an adverse employment decision on stereotypical assumptions about the effect of pregnancy on an employee's job performance, regardless of whether the employer is acting out of hostility or a belief that it is acting in the employee's best interest.

This story illustrates an important lesson about the perceptions we hold, consciously or unconsciously, about certain classes of employees. DiPalo was benched out of apparent good intentions. Nevertheless, that decision is not one for the employer to make. It is a decision between the pregnant employee and her doctor. Once the doctor clears her to work, it is out of the employer's hands to say otherwise, even if it has the mother's and baby's best interests at heart.

Employee fired for taking time off to undergo in vitro fertilization allowed to proceed with sex discrimination claim

Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.

What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.

Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.

Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:

Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.

The lessons to take away from this case are several:

1. The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
2. Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
3. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

Is mommy bias real?

The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:

Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that on the job, they're viewed in opposite terms. They say employers see them as less reliable, focused and committed than their co-workers, and weed them out of job interviews or bypass them for promotions. 

The practice has been labeled maternal profiling, and it is the source of a growing body of discrimination lawsuits being filed against employers. 

According to the Center for WorkLife Law at the University of California's Hastings College of Law, family-related discrimination cases increased by 400 percent from 1996 to 2005. Some workers sued because they were questioned about their marital status, family plans or child-care provisions during job interviews, then promptly dismissed. Other mothers say they were taken out of contention for jobs that required travel, long hours or physical labor.

But, does the empirical data support the popular notion of maternal profiling. HR World reports on a survey done by Adecco, the staffing firm, which suggests that mommy bias might be more fiction than reality:

Think what you want about parents in the workplace, but a new survey from Adecco found that 71 percent of working moms are likely to work late and respond to emails. That’s only two points below non-parents. However, 32 percent of workers would be less likely to ask working parents to stay late or answer emails after hours. 

Nonetheless, 49 percent of moms believe their companies should do better at helping achieve work/life balance. 

According to the survey:

• Do Moms Have It Better When It Comes to Access to Work/Life Balance?: Depends on who you ask! 60% of working moms think they have the same level of access to work/life benefits as non-parents. Less than half of non-parents (44%) agree with the statement and one in four (25%) non-parents think they have less access.
• Which is Harder to Manage?: According to working moms, managing career is a piece of cake next to managing family: 71% of working mothers find it more difficult to manage their family vs. career (29%).
• Career & Motherhood Can Go Hand-in-Hand: A majority of working mothers (59%) say becoming a mother has not impacted their career path, while 15% say its actually had negative impact on their career.

So, what's the answer? It mommy bias real, fiction, or somewhere in between? It's hard to ignore the realities of maternal profiling when companies are hit with multi-million dollar verdicts. At the same time, it is only a small minority or working moms (15%) who report that motherhood had a negative impact on their careers. At the end of the day, maternal profiling is real, but simply may not be as big of a problem as the Kohl's case makes it seem. Yet, 49% of moms still believe their companies should do better at helping them achieve work/life balance.

The takeaway for employers is that regardless of whether maternal profiling is as prevalent and widespread as some claim, it is still illegal sex discrimination. Separate and apart from the legalities of mommy bias, promoting a strong work/life balance is becoming increasingly important in the recruiting and retention of quality employees. Purposing screening out parents (moms and dads) from hiring or promotions needlessly removes a significant portion of the population of the workforce from a company. After all, today's young go-getter is tomorrow parent. Mommy tracking employees will result in a revolving door of younger, less qualified employees. And, it's illegal.

Wall Street Journal on the surge of pregnancy discrimination claims

This morning's Wall Street Journal has a piece on the growth of EEOC pregnancy discrimination charges. According to the Journal:

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.... The groundswell reflects both changing demographics and a new activism among mothers. It also shows that even now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"

While employers can indeed fire, lay off or refuse to hire pregnant women, they can't single them out for worse treatment -- and they must be able to prove they held men to the same standards or asked male job candidates comparable questions.... Many women who bring complaints are surprised to learn that they don't have special protection from adverse treatment. One manager for a publishing company thought she was being discriminated against when her employer fired her for poor performance while pregnant, says Kimberlie Ryan, a Denver employment attorney. In fact, the manager couldn't prove her bosses knew she was pregnant when they decided to fire her, says Ms. Ryan. To succeed in a claim, a woman generally must be able to prove an adverse action was motivated by her pregnancy or her status as a mother.

Let me suggest that if you decide to fire an employee for poor performance while that employee is on maternity leave, you have a well-documented paper trail of issues, and that the first the employee will be hearing about these issues is not during the termination. Otherwise, it will be difficult to overcome a claim that the performance problems were invented as a pretext to terminate a pregnant employee.

6th Circuit affirms maternal profiling verdict

I've been writing lately about maternal profiling, which is employment discrimination against a woman who has, or will have, children. Last week, the 6th Circuit, in Lulaj v. The Wackenhut Corporation, provides us a good example of this type of stereotyping in action.

Lisa Lulaj worked at Chrysler as a fire security officer, first as a Chrysler employee and then as an employee of Wackenhut Corporation after Chrysler outsourced its security operations. Lulaj accepted the transition to Wackenhut solely because she was promised a promotion to a supervisor position. Shortly after the transition, Lulaj filled out forms notifying Wackenhut that she was pregnant and would need a larger uniform. Within a month, her immediate supervisor offered her a lesser promotion than she was originally promised, looking at her stomach and telling her, "You should consider this position considering your position." Within a month, Lulaj went out on maternity leave. When Wackenhut refused to promote her to the originally promised supervisor position at the end of her leave, she decided not to return to work. She sued to pregnancy discrimination under Michigan law, and the jury awarded her a total of $200,000, to which the judge added $49,500 in attorney's fees. The trial judge also took away $142,168 in lost wages because the jury found that Lulaj had voluntarily quit and had not been constructively discharged.

The 6th Circuit rejected Wackenhut's argument that there was no nexus between Lulaj's pregnancy and the promotion decision. The the contrary, the court considered three pieces of evidence critical to its decision that Lulaj was discriminated against:

1. Company managers were aware of her pregnancy long before she officially informed them.
2. The timing of the events suggests discrimination.
3. The way her superior glanced at her stomach suggested that pregnancy was a factor in denying the promotion.

This case is a good example of how maternal profiling can cause a bad result for an employer. At the same time, however, it sets a potentially dangerous precedent by allowing a discrimination claim to stand based in large part on subjective interpretations of glances and stares.

"Maternal Profiling" listed as buzzword of 2007

With the calender barely having turned to 2008, I'm still catching up reviewing year end lists for 2007. One list, the New York Time's Buzzwords of 2007, should be of particular interest to employment lawyers, employers, and HR personnel. It lists "maternal profiling" as one of the phrases that took its place in the national conversation for 2007. Maternal profiling is defined as:

Employment discrimination against a woman who has, or will have, children. The term has been popularized by members of MomsRising, an advocacy group promoting the rights of mothers in the workplace.

A trip over to MomsRising.org reveals some frightening statistics about the workplace impact of maternal profiling. It cites one study which found that mothers are 79% less likely to be hired than non-mothers with equal resumes and job experiences. It cites another study that women without children make 90% as compared to a comparable man, as compared to 73% for women with children and 60% for single moms. It cites one final study that mothers were offered $11,000 less in starting pay than non-mothers with the same resumes and job experience, while fathers were offered $6,000 more.

I've spent a lot of time this year writing about family responsibility discrimination in light of the EEOC's recent enforcement guidance on the subject, and the $2.1 million verdict against Kohl's Department Stores for repeatedly passing over a qualified mom for promotion. Maternal profiling may have been one of the buzzwords of 2007, but it certainly appears that family responsibility discrimination is going to be a key employment issue in 2008 and beyond. Depending on how the political winds blow after the November elections, FMLA expansion, paid sick and parental leave, and incentives for family-friendly work programs will all be in play in 2009.

I am not suggesting that everyone rewrite their leave policies, but those who can afford to be family-friendly will have an advantage in recruiting and retention of employees for whom it is an important benefit (i.e., most people between the ages of 25 and 50). At a minimum you should be building the concept of maternal profiling into your harassment and EEO/diversity training. Discrimination in largely subconscious, and education is the first step towards prevention.

Hat tip to Carrie Kurzon at the New York Employment Lawyer Blog.

BREAKING NEWS: State halts new maternity leave regulations

So I've been saying for the past few months that once the OCRC adopted its new maternity leave regulations, passage by the legislative Joint Committee on Agency Rule Review would be a mere formality. Boy do I have egg on my face.

In a 9-1 vote, the JCARR sent the new regulations back to the OCRC for a more complete fiscal analysis. The Committee was unhappy that the OCRC said there would be no fiscal impact on school districts or local governments from the rule change. Today's Plain Dealer quotes State Senator and JCARR member Tom Niehaus, who cited as an example a small township police department that would be forced to cover shifts for a pregnant employee and pay overtime costs. Sen. Niehaus also expressed concern as to whether the OCRC has the authority to enact these regulations, although the Committee as a whole sidestepped that issue. The OCRC must now wait at least 90 days before returning with an updated application for the rule change. One now has to question whether the JCARR will ever approve the new regulations.

The bottom line for employers is that for now the old rule remains, that women must given a "reasonable" amount of time off work for maternity leave. I caution, however, that courts that have looked at the current 4112-05-5(G) have interpreted 12 weeks as "reasonable" because it is what the FMLA provides.