By Lily M. Strumwasser

In the EEOC’s Strategic Enforcement Plan for FY 2013-2016, it cautioned employers, corporate counsel, and HR professionals that the commission is ramping up its focus on pregnancy discrimination allegations. Employers beware – the EEOC is making good on its promise. The EEOC has recently filed a string of pregnancy discrimination lawsuits and there are no signs that the agency will slow down its pursuit of this topic any time soon.

The Nuts And Bolts Of Pregnancy Discrimination

The EEOC’s  approach to cracking down on pregnancy discrimination is linked to frustrations that women are frequently treated with bias when pregnant. The commission is focusing its resources on litigating pregnancy discrimination allegations in efforts to diminish long-standing stereotypes that pregnant women (or women with children) are less dedicated to their jobs than women or men without children.

The Pregnancy Discrimination Act (“PDA”) prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.  The PDA requires that employers treat pregnant women the same as other workers when considering their ability or inability to work. To establish a pregnancy discrimination claim, the EEOC must show that the employer treated the employee different from others who were unable to perform their job duties for reasons unrelated to pregnancy. Alternatively, the EEOC must establish that the employer treated the plaintiff differently because of her pregnant status. 

Pregnant women are also protected by Title VII, which states that pregnancy cannot be a factor in determining whether to hire or fire a woman. Title VII also provides that employers cannot retaliate against women employees because they are pregnant. 

The Family Medical Leave Act (“FMLA”) also provides protection to pregnant women. Under the FMLA, an employee is allowed 12 weeks of unpaid leave.

The EEOC’s FY 2012 Pregnancy Discrimination Filings

The EEOC’s renewed interest in pregnancy discrimination is linked to a large amount of pregnancy discrimination reports in recent years. As we have discussed here, the driving force to the EEOC’s future litigation strategy is its SEP.  Looking at the EEOC’s FY 2012 filing statistics next to its SEP provides insight into where the EEOC is headed. 

Last year alone, the EEOC received 3,745 pregnancy discrimination complaints. According to statistics published by the EEOC, the agency resolved a record number pregnancy discrimination cases in 2012 – recovering more than $14 million in settlements for victims. Check out the pie chart below to see how the EEOC’s sex and pregnancy discrimination cases filed in 2012 compare to its other areas of pursuit.

 

The EEOC’s FY 2013 Pregnancy Discrimination Filings

The EEOC dashed out of the gates in FY 2013 with an eye on pursuing pregnancy discrimination lawsuits. The cases below highlight all of the commission’s 2013 pregnancy discrimination settlements.    

 1.      EEOC v. Reed Pierce’s Sportsman’ Grille: In the first pregnancy discrimination lawsuit of the year, the defendant allegedly terminated Melody McKinley, who was four months pregnant with her first child.  When firing McKinley, the defendant allegedly said, “The baby is taking its toll on you.”  The EEOC subsequently filed suit in the U.S. District Court for the Southern District of Mississippi.  After the defendant lost two motions to dismiss the case, it agreed to a $20,000 settlement.

2.      EEOC v. Adventures in Learning Aurora, Inc.: In this case, the defendant allegedly forced a pregnant employee to quit after refusing to allow her to work after her fourth month of pregnancy.  The EEOC filed suit in the U.S. District Court for the Northern District of Illinois, charging the defendant with pregnancy discrimination.  Shortly after it was filed, the defendant settled the case for $31,000.

3.      EEOC v. Ramin, Inc.: The EEOC filed suit against Ramin Inc., the owner of a Comfort Inn & Suits, asserting it fired a housekeeper after she reported her pregnancy. The EEOC claimed that the defendant would not allow the woman to continue to work as a housekeeper because of the potential harm that her job could cause the baby.  The defendant agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages.

4.      EEOC v. Landau Uniforms, Inc.: In this case, the EEOC asserted that the defendant treated its employee, Tara Smith, unequally because of her pregnancy. The EEOC also claimed that the defendant disciplined and discharged Smith because of her pregnancy. The EEOC filed suit in the U.S. District Court for the Northern District of Mississippi. Subsequently, the parties settled the suit for $80,000.

5.     EEOC v. Engineering Documentation Systems, Inc.: In this case, the EEOC claimed the defendant engaged in pregnancy discrimination and retaliation. Defendant’s management official allegedly made derogatory remarks about the pregnant employee. The defendant also refused to move the woman’s office closer to the restroom to accommodate her nausea. While the pregnant employee was out on leave, the defendant changed her job description and subsequently terminated her while she was out on leave. After the EEOC filed suit in the U.S. District Court for the District of Nevada, the parties reached a settlement agreement for $70,000.

6.      EEOC v. James E. Brown & Associates, PLLC: In this case, a Washington based law firm allegedly rescinded a job offer for an associate attorney position after the firm discovered the applicant was six months pregnant. The firm offered Zorayda J. Moreira-Smith a position in January 2011. After Ms. Moreira-Smith received the job offer, she informed the firm that she was six months pregnant and asked the firm about its maternity leave policies. Later that day, the firm allegedly rescinded the job offer to Ms. Moreira-Smith. The EEOC filed suit in the U.S. District Court for the District of Columbia.  In June 2013, the parties settled the lawsuit for $18,000. The firm also signed a two-year consent decree, agreeing to implement a policy that prohibits discrimination. Likewise, the consent decree provides for mandatory training to the firm’s personnel.  

7.      EEOC v. Platinum P.T.S. Inc. D/B/A/ Platinum Production Testing Services: A clerk working for the defendant requested time off for medical treatment to address a miscarriage. The woman missed several days of work and anticipated staying home to deal with her medical situation.  After she took five days off, the defendant terminated her position. The EEOC filed suit in the U.S. District Court for the Southern District of Texas, asserting the employer unlawfully discriminated against her on the basis of pregnancy. The EEOC’s San Antonio office found reasonable cause to believe the defendant violated the PDA, and settlement discussions ensued. The defendant agreed to pay $100,000 to settle the pregnancy discrimination suit.

Implications For Employers

Given the significant media coverage surrounding pregnancy discrimination, these cases are likely to embolden the EEOC and private plaintiffs to continue their pursuit of pregnancy discrimination claims. There is no better time than now to evaluate your company’s policies and workplace practices. If you want to stay off the EEOC’s radar, make sure your practices do not adversely impact pregnant employees. Additionally, employers are well suited to train managers and supervisors about legal obligations relating to treatment of pregnant workers.    

If you have questions regarding the EEOC’s Strategic Enforcement Plan and how it might impact your company – or if you have questions related to leave administration or accommodations – please contact your Seyfarth lawyer or visit the Seyfarth website for contact information for people on these teams.