A female employee reveals she is pregnant shortly after her first few weeks on the job. Then, she is involved in an automobile accident. She tells her supervisor she needs to leave work for a prenatal exam to ensure her baby is healthy. She misses work that day.
The following morning, she does not show up to the office. The third day, she misses work again with no medical excuse or clear reason why. Five days later, she is terminated.
She says: You fired me because I’m pregnant. That’s discrimination.
The employer says: We terminated you because of poor attendance. That’s policy.
For employers without an airtight leave policy and meticulous personnel files, a pregnancy discrimination claim could mean court dates, exorbitant fees and a scarred reputation.
“This can get real expensive, real quick,” says Timothy Obringer, an attorney with Mazanec, Raskin, Ryder & Keller Co., who defended the employer described (which did not want to be named).
The Equal Employment Opportunity Commission (EEOC) reports that pregnancy-discrimination complaints spiked to record levels in 2007, even though birth rates dropped 9 percent. There was a 14 percent increase in recorded complaints last year — 5,587 charges. That’s 40 percent more charges than a decade ago and the biggest increase in 13 years.
But in analyzing these statistics, it’s important to consider the demographic makeup of today’s work force.
“There are lots of reasons for the increase, and I don’t think it’s because there is more pregnancy discrimination,” says Michelle Crew, small-business liaison for the EEOC Cleveland Field Office. “Discrimination is out there, and it always has been.”
Whatis different is the growing number of American women who work — about 70 million, which is 47 percent of the total work force, according to the Department of Labor.
The influx in claims is also a reflection of our dual-income culture: More women today are having children, taking maternity leave and going back to work. Also, as a society, we’re more educated about our rights and we’re much more litigious, Obringer adds.
During the EEOC investigation Obringer described, he pulled the pregnant female employee’s records showing her attendance. She had missed work consistently prior to the accident and those absences were duly recorded. According to the employer, she was not dependable. After further investigation, the EEOC found no probable cause for her pregnancy-discrimination charge. It was dropped — the employer was saved by its detailed personnel files.
The outcome isn’t always positive. In a different case, Crew recalls a pregnant woman in her early 20s who applied for a position at a deli counter in a grocery store. She met all qualifications for the position, but was not hired. The woman learned weeks later that the position was still open.
She says: You didn’t hire me because you knew I was pregnant.
The employer backed down fast and settled.
What Constitutes a Claim?
The definition of discrimination can be a slippery slope for employers when they don’t segregate workplace issues such as performance or attendance from pregnancy/maternity leave, says Nicholas Satullo, a litigator with Reminger Co. who focuses on employment cases.
For instance, a woman goes on maternity leave and upon her return receives an unsatisfactory performance review citing poor attendance. “If [pregnancy] happens sequentially in time that something ‘adverse’ occurs to the employee, you have your pregnancy discrimination claim easy-baked, no pun intended,” Satullo says.
The fact is, any woman can file a charge of discrimination, and the employer must accept the charge. “It’s a federally protected right,” Crew says.
And it doesn’t matter if the claim is legitimate or the employer is innocent. In fact, many cases result from miscommunication and feelings that an employer is not treating the pregnant woman fairly.
Here’s how the process usually works: A woman files a claim with the EEOC or the Ohio Civil Rights Commission (OCRC). She does not need an attorney if she files the charge with the EEOC for pregnancy discrimination based on Title VII, an amendment to the Civil Rights Act of 1964 that defines pregnancy discrimination as a type of sex discrimination — she simply files the charge and the EEOC notifies the business.
The business must accept the charge. The EEOC will then send a request for information, collecting evidence such as personnel files.
“To prove a discrimination claim, the woman [as the charging party] must prove that she is a member of a protected class and suffered an adverse employment action, and that there was a relationship or causal connection between her protected category and the adverse action,” Obringer says.
In other words, a woman can claim that her termination was due to her requested maternity leave. She is protected by antidiscrimination laws (women are a protected class), as well as Article VII. The causal connection is the termination coinciding with pregnancy.
The business can settle immediately in mediation before investigation. Or, the employer can remedy the charge with relief. If neither of these occur, the EEOC’s legal unit reviews the case and determines whether it is a case that merits litigation, Crew says.
It’s also important to note that just because there is a spike in pregnancy-discrimination claims does not mean they have merit. According to a record of pregnancy-discrimination charges from the EEOC and combined Fair Employment Practices Agencies, 51.6 percent of the resolved charges in 2007 had no reasonable cause based on evidence obtained in investigation. (The charging party can still exercise her right to private court action.) Merit resolutions — a win for the pregnant woman who filed the charge — made up 30.7 percent of resolved charges in 2007. The remainder of charges were conciliated or withdrawn.
Crew says most employers want to do the right thing, but “you can do everything by the book and still have charges of discrimination filed against you,” she says. The good news: Businesses that understand the rules and abide by them are “the easy cases” that are resolved in mediation or dismissed completely.
The Rules at Work
The best way to avoid any confusion on time off is to create an airtight company leave policy. Consider the following regulations when crafting one:
Family Medical Leave Act: This federal law requires 12 weeks of unpaid leave for employees (of companies with more than 50 employees within 75 miles) to care for a newborn or newly adopted child. Employees who have worked at the company for 12 months and 1,250 hours (about 25 hours per week) can also take this time off to care for a sick child, parent or spouse.
“When a woman is pregnant and if she has complications, that falls under FMLA,” says John Cernelich, co-chair of the labor and employment group at Calfee, Halter & Griswold LLP.
In fact, under FMLA, a woman prone to morning sickness is permitted to arrive to work late with a doctor’s note and cannot be penalized. “Approach pregnancy like any other medical condition,” Cernelich advises.
Pregnancy Discrimination Act: Employers who take an adverse action — failure to hire, promote, pay equal wages for equal work — on the basis of pregnancy, childbirth or related medical conditions are liable for discrimination according to the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act. This applies to companies with 15 or more employees.
Ohio civil rights law: The regulation that women should be given “reasonable leave” applies to companies with four or more employees. That phrase gives employers a fill-in-the-blank policy for maternity leave. The key is to include a phrase in a general leave policy that notes special consideration for maternity leave, says Elizabeth Stock, an attorney with the employment and labor group at Bricker & Eckler LLP.
A determination of “reasonable leave” can be made based on medical evidence, not what the employer deems appropriate, as set by a landmark Supreme Court Case in 1974, Cleveland Board of Education, et al. v. Jo Carol La Fleur and Ann Elizabeth Nelson, which involved two teachers who fought a mandatory leave policy. (At the time, women were to accept mandatory, unpaid leave five months before the expected birth date, and remain on leave until the semester after the child turned 3 months.)
The current Ohio Civil Rights Commission rule applies to businesses with four or more employees, though all employers should adopt the rules and be aware of a 2007 proposal by the OCRC to redefine the current loose Ohio policy to provide “reasonable leave” for women, Stock says
The OCRC’s Administrative Code 4112-5-05(G) says employers should provide 12 weeks of maternity leave — no matter what. The OCRC also says such a policy would have zero economic impact on business.
Business owners vehemently disagree, Stock says. The Joint Committee on Agency Rule Review rejected the proposal and told the OCRC to conduct an economic impact report and resubmit the rule.
“It’s not a dead issue,” Stock says of the OCRC’s effort. “As we start to see more leave-related claims and as the OCRC rule starts to get more attention, employers might have more of a problem if their leave policies aren’t compliant.”