Protecting Pregnant Employees: A PDA Problem

(Published August 1, 2009)

Reprinted from MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription. 

Even if you have an expectant employee's best intentions at heart, you may not make an employment decision based on her pregnancy alone. The Pregnancy Discrimination Act (PDA) makes it clear that acting on paternalistic concerns for an expectant employee and her unborn child is illegal.

PDA Problem #1: Too Physical

When Bianca Almodovar, a housekeeper, reported to work, the owner of the janitorial company met her with the news that he had reduced her hours.

"Bianca, it's for your own safety and the safety of your baby," Gary Hill explained. "Now that you are pregnant, it isn't good for you to be doing so much physical activity."

"But I can't afford to work less hours," Almodovar replied, "especially now that I have a baby on the way."

"Trust me, it's for your own good," Hill responded dismissively.

The next day, Almodovar gave Hill a note from her obstetrician. "My doctor assured me that I can safely perform my job without harm to myself or my baby."

"I'm sorry, Bianca, but the company does not want to take any risks because of your pregnancy."

Despite several more medical assurances, Hill refused to increase Almodovar's hours. Instead, he eventually terminated her employment.

Almodovar filed a lawsuit under the PDA. A court awarded her $50,000 and ordered the company to institute, disseminate, and enforce a policy under which pregnant employees are permitted to work as long as they are able to and choose to do so.

PDA Problem #2: Too Stressful 

"Between you and me," Jeffrey Myers confided in the applicant sitting across the desk from him, "you are by far and away the front runner for the casting assistant's position."

Kelly Garth couldn't help but grin from ear to ear.

"You have more experience than any of the other candidates we've interviewed," Myers continued. "Once I run it by the head of the production company, we'll need you to start right away. We hope to start filming by the end of the summer."

"That's perfect," Garth responded. "Casting should be complete before I have my baby."

"Oh, you're pregnant," Myers remarked. "You realize this job requires very long hours."

"Yes, I'm well aware of that," Garth replied. "As a matter of fact, I ran it by my doctor before I even applied."

The very next day, Myers sent Garth an e-mail informing her that she didn't get the position. Specifically, he said that he didn't think she would be able to handle the stress and long hours associated with the job. A discrimination lawsuit followed, which the production company settled for $75,000.

PDA solutions

While you have a responsibility to protect the safety and health of all your employees, you have no greater responsibility to protect pregnant employees from potential hazards. Pregnant employees must:

• Make their own decisions about their safety and the safety of their babies.
  
  
• Be allowed to continue working as long as they are physically able to do so, especially if they have medical clearance from their doctor.
  
  
• Be judged on their skills and abilities, not their pregnancy.