On further reflection, however, perhaps it also yields some lessons about a sensitive, not-so-obvious, and troublesome topic.
A recent EEOC press release announced: “Maternity Store Giant to Pay $375,000 to Settle EEOC Pregnancy Discrimination and Retaliation Lawsuit”:
A Philadelphia-based maternity clothes retailer will pay $375,000 to settle a pregnancy discrimination and retaliation lawsuit brought by the . . . EEOC. . . . The EEOC had charged that Mothers Work, Inc., doing business as Motherhood Maternity, refused to hire qualified female applicants because they were pregnant.
According to the EEOC’s lawsuit, . . . a former assistant manager complained about Motherhood’s policy and practice of discrimination against pregnant applicants, [and] Motherhood illegally disciplined and ultimately fired [her] because it believed she was pregnant and in retaliation for her complaints. . . .
The three-year consent decree settling the suit requires Motherhood to pay . . . $135,000 in compensatory and punitive damages; $50,000 in back pay; $130,000 for . . . attorney’s fees and costs; and $20,000 in compensatory and punitive damages to each of three women who were denied employment opportunities because they were pregnant . . . .
“The EEOC hopes that employers understand that the agency will take a very aggressive approach in combating the disturbing rise in pregnancy discrimination,” said . . . the EEOC’s Miami district director.
Motherhood . . . is the leading designer, manufacturer and retailer of maternity fashion in the United States, with over 1,000 stores nationwide and Internet retailing. . . .
In Florida, the EEOC’s Miami District Office received 223 pregnancy-related charges of discrimination in Fiscal Year 2005 compared to 114 in Fiscal Year 1992. Nationally, pregnancy-related charge filings have risen from 3,385 in FY 1992 to 4,512 in FY 2005.
“It is shocking that a corporation whose market is pregnant women would refuse to employ them and then retaliate against a woman who complained about the practice” . . . .
If it’s an applicant for a new job, someone who will need a leave several months after being hired may not be the ideal person to fill a key position. Described that way, there may not be any pregnancy discrimination. An employer that could show that it wouldn’t hire ANY employee (male, female, pregnant, nonpregnant) who announced in an interview that he/she would require several weeks of leave x months after being hired (e.g., for scheduled surgery) would not be discriminating on the basis of pregnancy. But the appearance of such discrimination would be hard to avoid, and there would likely be no such evidence of similarly situated employees.
There’s no Family and Medical Leave available for a new employee in such a situation, the FMLA requiring that an employee have been employed for at least 12 months in order to be entitled to leave. Often no vacation is available until completion of a year, either, and sick leave may be insufficient to cover the desired maternity leave. The employer could treat the new mother the same as any other employee without vacation or sick leave sufficient to cover an absence, possibly terminating for that reason — treating it as excessive absenteeism.
So does the employer have to hire anyway, knowing it will confront that scenario in the near future?
Perhaps not. This is like a handicap discrimination case: the disability may be a valid reason not to hire the individual, but not on the basis of stereotyped assumptions about his or her ability to perform the job. Rather, an individualized inquiry is required.
Likewise, an applicant known to be pregnant should not be presumed incapable of returning to work quite promptly after childbirth, but great care should be taken to ensure treatment equal to that afforded any other similarly situated applicant or employee. Ask yourself, “what would I think if this were a man and he’d just told me that in four months he would need two weeks off for knee surgery?”
It’s a situation fraught with difficulty, and it would be quite easy to say something in an interview with a pregnant applicant that could come back to haunt you. In the end, in most cases it is probably best to ignore concerns about disruption from maternity-related absence in the near future and make arrangements to deal with it when it occurs — if the pregnant applicant is otherwise best qualified.
The company’s press release is interesting:
Rebecca Matthias, President of Mothers Work, commented, “I strongly believe that our success as a maternity company depends on fair treatment of every Mothers Work team member and applicant. I was shocked and upset at the allegations raised in this lawsuit and we vehemently deny the implication that as a Company we have a policy to discriminate against pregnant women.
Our business revolves around serving the apparel needs of pregnant women and we encourage having team members who are also pregnant and can provide first-hand product knowledge to our customers. It is ridiculous to think we would try to discriminate against pregnant women.
We have strict policies against any illegal employment practices and have a specific confidential hotline to report any potential issues related to discrimination. Nonetheless, I am horrified that certain individuals felt that someone who was employed by us discriminated against them. Therefore, we will further strengthen our training to keep any future discrimination from ever happening.
“We are also going further, and have created a new and innovative fair employment auditing system. . . . This program includes . . . ’secret applicant’ employment interviews by an independent third party to help detect and prevent discrimination, as well as nationwide continued training. ‘Secret shoppers’ are used by many retailers to measure customer service but, to our knowledge, this is the first time ’secret applicants’ have been used to detect potential discrimination.”
As to the “secret applicants,” this may be the first use of this technique on a voluntary basis by an employer, but it has been used by others, including government agencies, seeking to identify hiring discrimination — which should be a frightening and sobering thought to all employers.
Additional resources on pregnancy discrimination:
Findlaw: “Pregnancy Discrimination FAQs”
Photo credit: webschepper via flickr
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Thanks for the comment, Peter.
It’s easy to conclude the company just did something really dumb they wouldn’t have done had they called you or me, but we don’t know that for a fact — only surmise it from the terms of the settlement, and fact the EEOC took the case on (pretty good basis for surmising).
I kind of wish the EEOC press releases included more facts. And this case would have really been an interesting read had it made it to the summary judgment or post-trial opinion stage, where the facts and positions would all be laid out in detail, and we could see just how this company got in such a pickle.
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This story kills me, yet hardly surprises me. I wish employers would simply take some time and pause before they take action like this. I wish they would pick up the phone and call a lawyer.
Peter Mullison
http://www.employmentlawcolorado.com