"Your Pregnancy or Your Job"...What NOT to Say to an Employee

Apr. 24, 2018

Last month, the EEOC filed suit against Dollar Tree for discrimination against one of its employees because of her pregnancy. The suit alleges a supervisor engaged in intentional discrimination when he harassed and later terminated a female employee because of her pregnancy in violation of Title VII.

 

This is issue comes up more often than one would think. Some managers and business owners are so concerned with production and their bottom line, they either fail to appreciate or simply do not care that pregnancy is a protected characteristic that requires certain accommodations from the employer. It is simply a cost of doing business and a “risk,” if you will, that one assumes when employing others. The alleged harassment in this case provides good examples of the kinds of actions employers should NOT take when responding to the news that an employee is expecting. 

 

Your Job or Your Pregnancy

When the Dollar Tree employee notified the store manager she was pregnant, he allegedly responded by asking her if she was getting an abortion. Of course, this is at the top of the list of what not to say to an employee when they inform the employer they are expecting. Below are other less obvious examples of employer snafus in their interactions with pregnant applicants and employees, and a discussion of how these missteps might be avoided.  

 

Hiring

The Minnesota Human Rights Act prohibits employers from discriminating against a person with respect to hiring on the basis of sex, which includes pregnancy.  (Minn. Stat. § 363A.08 subd. 2)  In LaPoint v Family Orthodontics, decided last April by the Minnesota Supreme Court,  a job applicant filed suit against an employer for discrimination based on pregnancy in violation of the Minnesota Human Rights Act after the employer rescinded the job offer upon learning the applicant was pregnant and would require a longer maternity leave than the employer typically granted to its employees. There, the Minnesota Supreme Court stated that job applicants are not required to prove an employer was hostile towards them in their decision, but only that the pregnancy was a “substantial causative factor” in the employment decision at issue. 

 

In LaPointe, the employer brazenly documented both in a handwritten notation and an an email concerns regarding the applicant’s pregnancy, including the following notations “Pregnant?!” and “Due 10/13!” on the candidate’s resume.

 

What is an employer to do?  First, understand your legal duties to protected class members when you are hiring or dealing with employee issues and abide by them, to the letter. Small business owners have numerous resources to learn and understand their obligations under the various employment laws at both the state and federal level.  Engaging the services of an experienced employment attorney to draft policies and procedures, train employees and troubleshoot issues as these arise in real time.

 

Second, be careful what you write on the documents you retain, including resumes, interview notes, etc. Even well-intended but unartfully worded notes and messages can be used as evidence in an investigation, lawsuit or other action.

 

Third, when in doubt call a well-oriented, knowledgeable and experienced employment attorney to help troubleshoot issues as these arise in real time. They have seen it all, or most of it, before, and in a 10-minute call can save the uncertain owner or managers untold amounts of financial and other company resources. Chances are good that an attorney would have advised against asking the pregnant Dollar Tree employee if she was getting an abortion.       


Lifting Restrictions

In the Dollar Tree case, the employee informed the store manager that her doctor put restrictions on her ability to lift heavy items.  The store manager then sent threatening text messages telling the employee that she needed to decide what was more important, her job or her pregnancy.  The manager also continued to insist that the employee lift items that exceeding her lifting restriction. (Really, you can’t make this stuff up.)  

 

In Minnesota, employers are required by law to accommodate a pregnant employee’s request for an accommodation when she has limits on lifting more than 20 pounds.  Additionally, under the Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act, an employer must treat an employee who is temporarily unable to perform her job duties the same as any other temporarily disabled employee. For example, if the store manager allowed other workers who had a temporary disability that restricted them from lifting more than 20 pounds and the manager accommodated those restrictions, he would be required to make a similar accommodation for the pregnant employee with a similar lifting restriction under the Pregnancy Discrimination Act. 

 

Additionally, in some instances certain pregnancy-related conditions may qualify as disabilities under the ADA.  If the employee’s condition rises to the level of a disability, the employer must engage in the “interactive process” (which in EEOC-speak means you have to talk to the employee) to determine an appropriate accommodation. In Dollar Tree, the store manager failed to engage in the interactive reasonable accommodation process.  Instead, he told her to choose between her job and her baby.  The store manager likely could easily have temporarily assigned her to a light duty position or found some other accommodation that would have allowed the employee to still work, but not have to do lifting that exceeded her restrictions. 

 

Another example includes dealing with employees who experience severe morning sickness. An accommodation may be a modified short-term work schedule allowing the individual to come in later in the morning after the morning sickness has subsided. If you are worried about how best to handle the reasonable accommodation process, again, an experienced employment lawyer can be a big help.  

 

Breaks

In addition to the threatening texts and refusal to honor her doctor-imposed lifting restrictions, the Dollar Tree supervisor also denied the pregnant employee her scheduled break times. Or, he would only allow her to take breaks just before her shift ended.  One time, the employee experienced heavy bleeding and fainting spells during work, but the manager still did not allow her to take a scheduled break to deal with her condition. He even refused to allow her to eat, exacerbating her conditions. One time, after the manager denied the employee’s break request because she felt ill, her condition worsened until she blacked out and then denied her request to go home. Instead, he made her stay until the end of her shift and then discharged her, stating that her “priorities were not in order” and she did not “need to work at the store anymore.” 

 

Again, an extreme example of a common issue. Pregnant employees often require frequent breaks to attend to bodily functions. Also, allowing an employee to keep a water bottle at a workstation is an example of a reasonable accommodation under the ADA.  In Minnesota, employers are required to provide a pregnant employee with more frequent restroom, food and water breaks if she requests it.  The key to avoiding issues though is engaging in an interactive dialog and training frontline managers on how to engage in the interactive process.  This shows the employer is making a good faith effort to comply with the law.

 

Proactive preventative measures

An employer needs to ensure that everyone understands the law and that their frontline managers and supervisors who will be working with employees through these issues are versed in what they should and should not say or do. If they do not know what to do, they should ask. And if they do think they know what to do, they should confirm.

 

Second, if their organization does not have adequate policies and procedures in place stating how they handle requests for accommodation, they need to get them. 

 

Third, a little common sense and compassion go a long way in these situations. Hire well-oriented managers and supervisors and get rid of those who aren’t with the program. Odds are that these issues with the Dollar Tree store managers were not the first one the company had to deal with. Problem employees are rarely worth the trouble they cause, but problem managers never are.  


Written By:
Bill Egan

Bill Egan is a Seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.

Rachell Henning is a second-year student at Mitchell Hamline School of Law's innovative Hybrid program. Rachell is an Avisen Fellow who enjoys spending time with her husband and two young daughters when she is not working or studying.

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