What Not To Do When An Employee Is Pregnant

What Not To Do When An Employee Is Pregnant


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Considering the amount of training and advice available to organizations, there are some things supervisors should know not say to a pregnant employee. For example, don’t suggest an abortion because of concerns of future absences. Don’t ask if a pregnancy means the employee will be quitting soon. Why? As the employer in Hitchcock v. Angel Corps, Inc., learned, such behavior is the start to a textbook example of how to stumble into an expensive lawsuit and jury trial.

Setting the scene for the lawsuit

The troubles started with a supervisor asking a pregnant employee whether she would be quitting after she gave birth. The employee was only three months pregnant at that time and said she was unsure, as it was too soon to tell. In response, the supervisor (a woman) said a decision needed to be made as quickly as possible, with a minimum of 30 days’ notice. Following that conversation, the employee’s workload was significantly increased. She was also required to meet with the supervisor on a weekly based to review her progress.

On the face of it, the supervisor’s comments appear insensitive, but not outright proof of having a problem with the employee’s pregnancy. Standing alone, the extra workload seems legitimate, as it was within the range of the employee’s job description. The weekly performance meetings also seem reasonable. The employee had childcare issues that prevented her from working more than 40 hours in a week and felt it was nearly impossible to complete the tasks. So perhaps the weekly meetings were in response to the employee’s difficulty handling the extra workload.

However, for the employee on the receiving end, each supervisory action likely begged the question of whether she was doing something wrong or whether the supervisor was reacting negatively to the pregnancy news and making life difficult for her, so she would leave on her own. The supervisor’s actions, coming just after the news about the pregnancy, could easily have made the employee think she was facing pregnancy discrimination.

The situation got really bizarre when the employee went to a potential client’s home for an initial assessment. The client’s son only let the employee get a glimpse of his mother and the employee suspected the client was possibly dying or already dead. It was a harrowing experience for the employee, which she reported to the supervisor. The supervisor contacted the police and it was learned that the client had already been dead for two or three days by the time the employee visited the house.

Shortly after the investigation, the employee was fired. The supervisor filled out a disciplinary action form, which stated, “this employee completed a full admission on an expired client…[the employer] and its management staff feel that as a result of this employee’s actions she compromised the health and safety of this client.”

Someone really should have paused and asked how the employee could compromise the health and safety of a dead person.

Heading for a jury trial

The employee had a ready claim for pregnancy discrimination given the reaction when the supervisor learned of the pregnancy, the immediate comments about whether the employee would be quitting, followed by the timing of the extra work, the scrutiny of her performance, and finally the bizarre reason for her termination.  Bolstering the employee’s argument that the supervisor had a problem with pregnant employees was testimony of a former employee,stating that the supervisor had suggested she get an abortion because another child might negatively affect her attendance.

The employer actually succeeded in getting the claim dismissed on summary judgment, prior to a trial. However, the 7th Circuit Court of Appeals reversed, stating there was an unresolved question about why the employee was terminated.

For the employer to avoid a jury trial and be rid of the claim on summary judgment, it needed to show the court that without a doubt, it did not have a discriminatory motive for terminating the employee. The court concluded this was an open question best decided by a jury. The court suggested the employer’s stated reason for the termination,”compromising the health and safety of an expired client”, was ludicrous enough not to be believable. Several shifting and inconsistent explanations during the lawsuit cast further doubt on the employer’s stated reason for the termination. Additionally, the supervisor’s comments and actions provided enough circumstantial evidence that perhaps the real motivation was pregnancy discrimination.

Takeaways

This case offers the following insights:

1)      Be careful of assumptions and stereotypes. The supervisor was also a woman. However, that did not prevent her from making troublesome comments or assuming that a pregnancy would affect employees’ performance or desire to keep working.

2)      Provide training to supervisors. The supervisor should have been receiving training on the type of comments and actions that lead to lawsuits and liability for employers. The supervisor should have known to avoid telling an employee to get an abortion or assuming a pregnancy would lead to an employee quitting.

3)      Timing matters. Taking adverse employment actions soon after learning an employee is in a protected group will seem suspicious and strengthen an employee’s discrimination claim. Here, the supervisor showed a distrust for a pregnant employee and followed that up with more work, extra scrutiny, and finally an abrupt termination. The supervisor’s actions practically invited a lawsuit.

4)      Be accurate and precise. If a reason for discipline or termination is offered to an employee, make sure it is clear, consistent, and logical based on the events that happened. While an employer may eventually be able to explain away questionable logic, it may well be after facing an expensive jury trial. Here, the clearest explanation (after-the-fact) seems to be that the employee was terminated because she should have been more thorough during the assessment. If that were the case, the supervisor should have listed specific steps all employees were required to complete but this employee failed to complete. While that alone would not have thwarted a lawsuit, it would have strengthened the employer’s defense for the termination.

Author: Attorney Nilesh P. Patel