What If Men Got Pregnant?

The EEOC’s Plan to Root Out Pregnancy Discrimination in the Workplace

by Cortlin Bond and Anne Yuengert

at Bradley Arant Boult Cummings LLP

Remember last year when we repeatedly posted about the Pregnant Worker Fairness Act (PWFA) and the PUMP Act telling you that the EEOC was going to have pregnancy discrimination on its radar? Recent activity from the EEOC suggests we were right. The EEOC recently issued two press releases about its lawsuits involving pregnancy discrimination claims, which make clear they are focused on pregnancy discrimination in the workplace.

What happened?

According to the press release, a Georgia employer is paying $50,000 to settle a Title VII pregnancy discrimination claim. The EEOC had filed a lawsuit alleging that the pathology lab discriminated and retaliated against an employee who experienced pregnancy-related symptoms. The EEOC alleged that the lab terminated the employee shortly after she complained of pregnancy discrimination and while she was on approved leave related to her pregnancy. The settlement included the $50,000 payout and a two-year consent decree requiring the employer to provide all employees with specialized training, circulate policies and complaint procedures, and to post a notice setting forth the Title VII requirements.

Another press release reported that the EEOC recently filed a lawsuit against a New Orleans bakery for pregnancy discrimination in violation of Title VII and the ADA. According to the EEOC, the bakery terminated an employee after she missed two shifts to seek medical treatment related to her pregnancy. The complaint alleges the bakery managers reported that the pregnancy complications created a reliability issue. As this case is newly filed, not much has happened, but we will keep you updated with any key updates.

While neither of these cases involve a PWFA claim, both press releases reiterated the EEOC’s commitment to safeguarding equal employment for pregnant employees. In fact, one EEOC representative stated “[t]he EEOC will use all tools at its disposal to root out pregnancy discrimination, including the federal Pregnant Worker Fairness Act (PWFA).”

What can you do?

Not to sound like a broken record, but:

• Make sure you have policies prohibiting discrimination and retaliation, and specifically mention that pregnancy is a covered status.
• Include the policies in training materials and onboarding materials so that every employee sees that you have a policy against discrimination and harassment, including pregnancy discrimination and harassment.
• Update your policies or employee communications to highlight what is available to pregnant employees (and for the PUMP Act, set out what resources are available to employees who are lactating).
• Think about creating a short handout for pregnant employees about maternity leave, return from leave, policies, and the contact person who can answer questions and work with them during this time and after their return.

Finally, make sure everyone is on the same page. You have a legal duty to accommodate pregnant and lactating employees in new ways. The EEOC is going to be looking to see if you are doing that. Educate your supervisors and managers so they know what to do when an employee announces she is pregnant and who to call when or if she requests any form of accommodation.