Safety Policies For Pregnant Employees Must Go

(Published December 22, 2008)

 

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While you have a duty to protect employees' health and safety, you have no extra duty to protect pregnant employees from dangerous work conditions.  The U.S. Supreme Court declared in 1991 that decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them, rather than to the employers who hire those parents or to the courts.  But some employers still haven't gotten the message that paternalistic concern for a woman's unborn child violates Title VII, as amended by the Pregnancy Discrimination Act.

From January 1998 until at least April 2005, a hospital had in place the following policy to restrict exposure to radiation: "All pregnant personnel must immediately report pregnancy status to the director…The pregnant personnel shall not partake in any fluoroscopy or portable procedures during her term.  This will ensure safety and protection."

The Equal Employment Opportunity Commission (EEOC) sued the hospital for sex discrimination on behalf of two women who declared their pregnancies and were removed from their duties.  A court sided with the agency, finding that the policy "clearly classifies pregnant people (and therefore, only women) in a manner that would tend to deprive them of employment in a fluoroscopy lab."  As a result, the hospital agreed to settle the claim for $155,000.  (EEOC vs. Catholic Healthcare West, d/b/a Northridge Hospital Medical Center, C.D.CA, No. CV-06-01915, 2008)

Safety Policy Can't Be Supported

 

The court knocked down all of the hospital's defenses for enforcing such a policy.

Good intentions: The hospital argued in court that it believed the policy was "in the best interests of its pregnant employees."  Admirable, certainly.  But the Supreme Court has made it clear that "the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy."

Employees requested removal: The hospital also argued that the two employees requested to be removed from the fluoroscopy room.  The EEOC countered that they weren't really requests at all because the policy forced them to leave fluoroscopy.  The court held that the employees' motivations for wanting to leave fluoroscopy "do not neutralize a facially discriminatory policy any more than do the good intentions of the hospital."

BFOQ: The hospital also tried to argue that sex is a bona fide occupational qualification (BFOQ) because regulations promulgated by the U.S. Nuclear Regulatory Commission impose higher radiation limits on "declared pregnant women" than on men and non-pregnant women. 

 

This BFOQ defense failed on two counts: 

• The regulations explicitly give women the choice as to whether or not to declare their pregnancy.
  
• The Supreme Court has roundly rejected fetal safety as a defense to policies that facially discriminate on the basis of pregnancy. The BFOQ’s "safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job."  The hospital had not argued, much less presented any evidence, that pregnant employees are in any way less capable of performing all the tasks required to work in the lab than their male counterparts. 

Related Topic(s):

Discrimination/PDA-Pregnancy Discrimination Act 
Safety & Health