As part of its Strategic Enforcement Plan for 2012-2016 (“the SEP”), the U.S. Equal Employment Opportunity Commission (“EEOC”) identified the following five priorities for national enforcement in the private and federal, state and local government sectors:
1. Eliminating systemic barriers to recruitment and hiring;
2. Protecting vulnerable workecombatrs such as immigrants and migrants;
3. Targeting discrimination because of pregnancy, disability, or sex focusing specifically on the LGBT (lesbian, gay, bisexual and transgender individuals) community;
4. Preserving access to the legal system; and
5. Combating harassment through national education and outreach campaigns.
Since the EEOC released the SEP for public comment in September, it has wasted no time working towards its goal of cracking down on pregnancy discrimination. In recent weeks, the EEOC filed four lawsuits against employers for pregnancy related discriminatory practices.
In one case, the EEOC filed a lawsuit against Muskegon River Youth Home in Michigan for having a discriminatory pregnancy policy that required an employee to produce certification of her fitness for duty immediately upon learning she is pregnant. In addition, Texas restaurant chain Bayou City Wings was sued for laying off several pregnant managers pursuant to a written policy in the employee handbook that required pregnant employees to be laid off after the third month of pregnancy. The restaurant said the policy was necessary to protect the health of the unborn child. The EEOC argues the policy is unlawful because women have the right to be employed while pregnant and that the decision to work rests with the woman, not the employer.
A lawsuit was also filed against Florida employer J’s Seafood Restaurant for firing two employees after learning of their pregnancies. Finally, the EEOC filed a lawsuit against California security company Quest Intelligence Group because it refused to return a female security officer to work following her maternity leave. Although the company told her there was not enough work to bring her back, the EEOC claims its investigation revealed that the company had hired several male employees.
The Pregnancy Discrimination Act was an amendment to Title VII of the Civil Rights Act of 1964. It prohibits discrimination based on pregnancy when it comes to any aspect of employment including hiring, pay, promotions, layoff, benefits and termination. Pregnancy discrimination involves treating an applicant or employee differently because of pregnancy, childbirth or a medical condition relating to pregnancy or childbirth (e.g. gestational diabetes).
The cases filed by the EEOC emphasize the importance of basing employment decisions on legitimate non-discriminatory job-related criteria. In other words, applicants and employees should be evaluated on their individual merits without regard to whether they are pregnant. An employment decision that considers the pregnancy of an applicant or employee may not be defensible and could be viewed as sex discrimination.
These cases also teach that employers should refrain from reaching their own decisions on whether a pregnant employee can continue working. Pregnant employees have the right to work as long as they can perform their job duties. Further, only the employee may make decisions regarding her and the unborn child’s health. Thus, employers may not adopt or maintain policies that require pregnant employees to be put off of work for a predetermined amount of time without regard to the individual employee’s actual ability to perform her job duties. Employers also may not require employees to obtain medical clearances to continue working unless they require all employees with medical conditions to submit a doctor’s note.
In light of the EEOC’s stated intent to focus on combating pregnancy discrimination, employers are encouraged to review their policies and practices relating to all aspects of employment including hiring, pay, promotions, layoff, benefits and termination to make sure women affected by pregnancy or other related conditions are not treated any differently than other applicants or employees who are similar in their ability to work. Employers may also contact one of our attorneys at any of our four offices with questions.