Pregnancy discrimination is creating yet more troubles for employers, which are landing in hot water for keeping pregnant employees out of hazardous areas.
Most recently, employers in Texas and California settled pregnancy discrimination lawsuits that claimed they wrongfully prohibited pregnant employees from working in certain areas.
One case involved a California nurse who was barred from working in a hospital lab because of possible radiation exposure. EEOC v. Catholic Healthcare West, No. 06-cv-1915 (C.D. Calif.). The case settled last month for $155,000.
The other involved a Texas veterinarian technician who was reassigned to a different job at an animal clinic to avoid exposure to toxic chemicals. That case also settled last month, for $15,000. EEOC v. Aggieland Animal Health Clinic, No. 4:2007cv03079 (S.D. Texas).
The right thing?
Both employers claimed they were just trying to do the right thing. The employees claimed discrimination.
“While they [employers] may believe they are doing the right — and the safe thing — by limiting or changing a pregnant woman’s responsibilities in the workplace, those actions can be perceived as discriminatory,” said Linda Hollinshead, of Philadelphia’s WolfBlock, who represents employers in workplace disputes.
Good intentions or not, it’s not the job of employers to be paternalistic in making workplace decisions for women, said attorney Elizabeth Grossman, who works in the New York office of the Equal Employment Opportunity Commission. “It’s the woman’s job and the woman’s pregnancy and the woman’s decision of what choices she’s going to make,” she said.
Grossman’s argument relies largely on the 1991 U.S. Supreme Court ruling in UAW v. Johnson Controls, 499 U.S. 187, which held that an employer could not refuse to hire women of childbearing age because of potential hazards to a fetus due to exposure to dangerous substances in the workplace.
The 1991 decision was cited in the recent California case, Catholic Healthcare West, which involved a nurse barred from a lab for fear of radiation exposure. In that case, a federal court in January ruled that the hospital’s policy prohibiting pregnant employees from working in the lab was discriminatory.
Management-side attorneys say these rulings put their well-intentioned clients in a tough spot: Protect a pregnant worker and risk a discrimination suit, or let her work in a hazardous area and risk a tort claim should a child be born with a defect.
“Employers are faced with what I would call a Hobson’s choice — they’re literally stuck between a rock and a hard place,” said David Long-Daniels of the Atlanta office of Greenberg Traurig, who defends companies in pregnancy discrimination claims. Long-Daniels said that, although the U.S. Supreme Court has prohibited employers from making workplace decisions for pregnant employees, there are still plenty of state tort laws that could expose employers to liability if a child is born unhealthy.