IN THIS ISSUE:

1. Feature Story: Pregnancy Discrimination Act Covers Abortions And Infertility Treatments 

2. Cathie's Corner: Knowledge Needed Beyond Employment Law 

3. DOJ Settles First USERRA Class Action Lawsuit

4. Free Report: Training Managers To Conduct Effective Performance Appraisals 

5. HR Soapbox: Encourage And Celebrate Your Workplace Champions 

AHI's We Couldn't Make This Up

There is something to be said for employee ingenuity. Especially for an employee in Jacksonville, FL, who thwarted a workplace burglary by pointing his cell phone at the suspect. "The low battery beeps a red light, and when I saw it, I was thinking of one of those lasers. So, I got close to [the burglar] and said, 'Freeze or I'll shoot you,'"explained the employee. His phone must have looked pretty ominous because the burglar complied and lay on the floor with the employee sitting atop him until the police arrived.

1. FEATURE STORY:
PREGNANCY DISCRIMINATION ACT COVERS ABORTIONS
AND INFERTILITY TREATMENTS

When educating management on avoiding Pregnancy Discrimination Act (PDA) claims, it is important to cover how employees who are not pregnant may be protected by the Act. For example, two recent circuit courts have held that the PDA protects those who have an abortion and those who seek fertility treatments.

In June, the 3rd Circuit (Delaware, New Jersey, Pennsylvania, Virgin Islands) declared that the plain language of the PDA, "together with the legislative history and EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion." (Doe v. C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508)

The court has not determined whether the employee has a valid claim, just that she can go to trial and try to prove that her supervisor fired her because she had an abortion. Her evidence includes the fact that he treated her differently than other employees who were out sick by requiring her to call in every day of her absence. He also allegedly commented that the employee "did not want to take responsibility," which raised a reasonable inference that the abortion factored into his termination decision.

Managers must understand that, no matter how strongly they oppose abortions, they cannot let it affect how they treat employees who feel differently.

On the opposite end of the spectrum are employees who are trying to get pregnant via infertility treatments. An employee took a month off to undergo in vitro fertilization (IVF) treatments. Three months later, she again applied for a leave of absence to undergo IVF. At about the same time, she was reorganized out of her job. She accused the company of discriminating against her in violation of the PDA.

A district court dismissed the case in 2006, ruling that the employee failed to prove she is a member of a protected class. Reason: Infertility affects both men and women equally and is not a condition that is unique to women.

However, in July, the 7th Circuit (Illinois, Indiana, Wisconsin) reversed that decision. Said the court: "Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women…Thus, contrary to the district court's conclusion, [the employee] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity." (Hall v. Nalco Co., No. 06-3684)

Take care when handling a leave request for infertility treatment. The employee could be protected by the PDA, the Family and Medical Leave Act (if the definition of serious health condition is met), and/or the Americans with Disabilities Act (infertility is a substantial limitation on the ability to reproduce).

2. CATHIE'S CORNER:
KNOWLEDGE NEEDED BEYOND EMPLOYMENT LAW

A couple of years ago, a major company in the Midwest made national headlines by announcing that they would not hire anyone who smoked. A year ago, a smaller company in the Northeast went more or less unnoticed when they made a similar announcement, and gave all their employees a year to quit. Now, an employee who failed to quit and was fired when a urine test proved it, has filed a lawsuit...Continue the story.

3. DOJ SETTLES FIRST USERRA CLASS ACTION LAWSUIT

In 2006, the Department of Justice (DOJ) filed the first class action lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The DOJ charged American Airlines with...Continue the story.

4. FREE REPORT:

TRAINING MANAGERS TO CONDUCT EFFECTIVE PERFORMANCE APPRAISALS 

Check out the recently updated Free Report, "Training Managers To Conduct Effective Performance Appraisals," which will help you to help your managers get positive results from their appraisal sessions by providing guidance on setting up appraisal training, conducting and documenting performance appraisals, and dispensing criticism. Newly added advice explores how to create the right atmosphere in which to conduct a review, 12 common performance evaluation traps that can snare any manager, and the legal danger of having double standards in performance improvement plans

5. HR SOAPBOX:
ENCOURAGE AND CELEBRATE YOUR WORKPLACE CHAMPIONS

I dream of being an Olympic champion. The fact that I can hardly walk across a room without stumbling or bumping into something is so beside the point… I just want to work really hard at something, then prove myself under pressure in some spectacular fashion and be celebrated for it...Continue the story.