What do you do when you have a pregnant employee who has gotten to the point of being too large, in your opinion, to do her job? There are several answers to this question you just have to be sure your pick the right one. According to the EEOC one company did not.
The management of an Asian restaurant decided that two of its servers had gotten too large to do their job of waiting on tables. So they fired them. As you might guess that was the wrong answer to the question in the title. A complaint was made and the EEOC filed a lawsuit after attempting to conciliate. The EEOC is seeking to keep the company from engaging in this again as well as “…equitable relief in the form of reinstatement and back pay, as well as compensatory and punitive damages for the discharged servers.” Oh, by the way they were also charged with not displaying the EEOC poster, an error that should NEVER be made.
In the press release about this case the EEOC said “Despite the paternalistic age-old stereotypes that persist about pregnant women and work, not only can women work while pregnant, they have a right to do so.”
What they should have done
Rather than firing these employees and assuming they were not able to do their work they should have had a discussion with them and determine if they were temporarily unable to perform. If that was the case the law requires “If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee.”
Quite often medical conditions related to pregnancy are covered under the Americans with Disabilities Act Amendments Act (ADAAA) and this requires employers to engage in an interactive discussion with the employee to determine what extent she is disabled and what might be a reasonable accommodation. These accommodations may include light duty, alternative assignments, disability leave, or unpaid leave. All of these are much better alternatives to firing the pregnant employee. In talking about a similar case Jon Hyman, a partner at Kohrman Jackson & Krantz. said “… companies really act at their peril if they do not at least consider an unpaid leave of absence as an accommodation for a pregnant worker.”
To be clear, the Pregnancy Discrimination Act does not require accommodation. It just requires treatment on par with how you treat all other temporary disabilities. Since most companies do not off handedly fire everyone that become temporarily disabled they should not do this with pregnancy either. Throw in the ADAAA and accommodation and the interactive discussion become necessities.