Pregnancy discrimination and the failure to accommodate

Pregnancy-related discrimination is a form of sexual discrimination and can derail a career. Job loss or a demotion and reduction in pay during this time also makes it more difficult to provide for a growing family.

During the nine months of pregnancy, many women find that their employers are less than understanding. One form of sexual discrimination occurs when a pregnancy-related condition underlies a demotion or firing.

The Pregnancy Discrimination Act passed in 1978 was an amendment of Title VII of the Civil Rights Act of 1964. The PDA prohibits discriminatory employment actions related to any condition of pregnancy or childbirth. When and if an employee can no longer perform the duties of a job because of a pregnancy- or childbirth-related condition, the employer must treat the employee in the same way it would any other temporarily disabled employee.

The Equal Employment Opportunity Commission recently updated its rules on pregnancy discrimination. This was as the Associated Press reported pregnancy-related EEOC complaints had increased 46 percent from 1997 to 2011.

Most employers are savvy enough that they will never admit to firing an employee because she is pregnant. It is often necessary to look for evidence or clues that might show discriminatory intent. Several recent cases filed against shipping companies provide examples.

Hours reduction and termination

A part-time customer service agent worked at a FedEx location in Charleston, West Virginia. Her job duties involved selling packaging materials, processing packages and taking phone calls. She had worked at the location for a year when she informed her supervisor she was pregnant and a nurse had recommended a 25-pound lifting restriction.

FedEx placed the employee on medical leave under the Family Medical Leave Act. The company also capped her weekly hours. She worked a light-duty assignment until the birth of her child. FedEx calculated her FMLA leave by subtracting the number of hours she had averaged (27.23) from the number she worked (21) during her pregnancy. By the time she had her baby, no FMLA leave remained.

A week after the birth of her child, FedEx notified her that because her leave exceeded 90 days and no FMLA remained her position was being eliminated. She could remain on leave for several months, but if she did not find another job in the company, she would be terminated. She received an offer to be a handler in Huntington, but declined because the position was only 3 hours a day and a long commute. FedEx then terminated the mother.

The woman brought claims for pregnancy discrimination, FMLA interference and retaliatory termination following a request for pregnancy-related leave. In this case, FedEx claimed it did not discriminate, because the woman no longer possessed the needed skills for her job when she could not lift 75 pounds. The woman asserted that such large packages were rare.

In a summary judgment decision, a judge decided that a jury would need to determine whether the work hour limitation related to the lifting restriction or was in response to the pregnancy.

The U.S. Supreme Court will soon hear a similar case involving a UPS worker who was required to take unpaid leave during her pregnancy. The employer in that case would not provide an alternate assignment as it had for other workers with ailments such as high blood pressure.

It is hard to tell when a pregnancy or leave to care for a child is the actual underlying cause for the loss of a job or demotion. If you have concerns, speak with an experienced, local employment law attorney. Past and future lost wages along with punitive damages may be available.

Keywords: Sexual discrimination, pregnancy-related conditions, FMLA violations