DEALING WITH PREGNANCY EMPLOYEES: SOME PRACTICAL TIPS

By Jonathan K. Driggs, Attorney at Law

After 20 years of practicing employment law, I’ve come to the following conclusion: most of the time employees don’t sue their employers because a law was violated—they sue their employers because they feel mistreated (or disrespected, etc.) and then they go look for a law that will suit their situation.

Pregnant employees provide a useful example.  I’ve interviewed many women over the years who have filed pregnancy-related discrimination claims against their employers (usually after being terminated).  I’ve asked them a simple question: “when did you first become concerned about your job being in jeopardy?”  Many of them responded with, “I first became concerned when I initially informed my manager that I was pregnant and he/she responded in a negative manner.”  Ouch.

In other words, instead of the manager saying, “congratulations, you must be so excited!”, it was something like:

  • “Oh great, what d’ya go do that for?” or…
  • [said while rolling eyes] “Darn it! You’re the third employee this month to tell me she’s pregnant, I don’t know how I’m going to deal with all of the scheduling issues!”

Or my personal favorite…

  • “Who’s the father?!?”

Ugh.  Please keep in mind, because in the eyes of the law most managers and supervisors are “agents of the employer”, the employer has effectively made these insensitive statements.  Not good.  Now, the whole period of pregnancy, maternity leave and return from leave is unnecessarily tainted with suspicion and mistrust.

Because men can’t get pregnant (which by the way, is the whole idea behind pregnancy discrimination statutes), the law comes in and in many ways ties employers hands when it comes to pregnancy-related matters.  A few quick and simple do’s and don’ts that can save you a whole lot of time and money when dealing with pregnant employees:

  • Don’t ask female applicants about their pregnancy status, plans to have children, who’s going to take care of their kids while at work, etc.  These are big red flag questions—the law declares this topic to simply be “off limits!”, so it is important to respect the law.  Sadly, I am amazed by how often these questions still are asked during job interviews.  Trust me, I know that having an employee become pregnant can create complexities—but it is what it is, and employers need to respond in a respectful and compliant manner.
  • Unless the employee’s pregnancy-related medical problem qualifies as a disability under the ADA (see last month’s article for details), you are required to treat a pregnant employee as well as you treat someone with a short-term disability when it comes to workplace accommodations.  But here’s an informal rule that I find works wonders most of the time: be reasonably helpful and accommodating.  Obviously, there are practical limitations, but doing so buys you a lot of good will with the employee.
  • Pregnant employees can work up to the date of delivery so long as they are able to perform their jobs.  Employers shouldn’t send someone home as a precaution simply because they are concerned that she might hurt herself now that she’s 7 months pregnant.

It is common for nuanced situations to arise when an employee becomes pregnant or once the baby is born.  It is a good time to confer with an HR consultant or attorney about how best to proceed.  The EEOC has clearly signaled that they are stepping up enforcement efforts on pregnancy-related cases.  But remember our number one rule: always be kind, thoughtful and considerate during this important time in your employee’s life.  It’s hard to go too wrong while doing that.

 

This article should not be construed as legal advice.  Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C.  All rights reserved.  Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission.  www.jkdlawpc.com

 

Jonathan’s popular “Employment Law for Managers Seminar” is being offered by two “Custom Fit Programs” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers):

For employers in Salt Lake County: Thursday, October 3 at the SLCC Miller Campus in Sandy.  For details and registration contact: Debbie Patten at 801-957-5244.

For employers in Utah County: Thursday, September 26 at the Mountainland Applied Technology College’s Thanksgiving Point campus.  For details and registration contact: Roger Rice at 801-753-4153.

For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/

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