Archive
EEOC’s Focus on Pregnancy Discrimination
Earlier this week, we gave you an overview of the issues that, according to a recent draft of its Strategic Enforcement Plan (“SEP”), the EEOC is likely to target in the coming years. One of the emerging issues highlighted in that draft relates to pregnancy discrimination, specifically, situations which force women into unpaid pregnancy leave after being denied accommodations routinely provided to similarly situated employees. In lock step with the EEOC’s express priorities, the following relevant cases have emerged over just the last few months:
EEOC v. Bayou City Wing - Pursuant to a policy in its employee handbook, Bayou City Wings laid off eight female employees after the third month of their pregnancies. At least one employee was terminated despite providing a note from her doctor indicating that she could work up to the 36th week of her pregnancy without any restrictions. Bayou City Wings argued that keeping a pregnant employee pas the third month would “be irresponsible in respect to her child’s safety” and would jeopardize his position with the company “for not following procedures.” The EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial.
EEOC v. Quest Intelligence Group – Tabitha Feeney was fired from her security officer job after taking maternity leave. Feeney had worked as a security officer for Quest for nearly one year, prior to her leave. After her leave, she contacted Quest to return to work, and the employer told Feeney that there was no work available. Quest indicated to Feeney they would bring her back if any positions opened up, but they never called. The EEOC’s investigation showed that the company had solicited and hired several male employees after Feeney’s request to return to work. EEOC filed suit, seeking lost wages, damages for emotional distress, and punitive damages, as well as injunctive relief such as training for company managers and employees, and compliance monitoring by the EEOC.
EEOC v. J’s Seafood, Panama City, Florida – J’s seafood restaurant laid off two pregnant waitresses because, as alleged by the EEOC, “their pregnancies caused them to be a liability to the company.” Both employees were hired in June 2011, and fired in October 2011, after the restaurant became aware of their pregnancies. The EEOC filed suit in U.S. District Court for the Northern District of Florida, seeking monetary damages, including back pay, compensatory and punitive damages, reinstatement and injunctive relief.
EEOC v. Muskegone River Youth Home - The EEOC claims that the Muskegone River Youth Home policy requiring “employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing work” is a form of pregnancy discrimination that violates the Pregnancy Discrimination Act, a part of Title VII of the Civil Rights Act. The EEOC seeks an injunction prohibiting Muskegon from maintaining the relevant policy.
EEOC v. Chemcore - Settled on September 21, 2012,Chemcore Industries, Inc. agreed to pay employee Marie Simmons $30,000 after firing her within hours of learning she was pregnant. Beyond the monetary award, a consent decree included provisions for equal employment opportunity training, posting of anti-discrimination notices, and reporting of internal discrimination complaints.
In addition to the EEOC’s focus on pregnancy discrimination, legislation was proposed earlier this year in the U.S. Senate, which would require employers to reasonably accommodate pregnant employees and applicants. The Pregnant Workers Fairness Act, introduced by Sens. Bob Casey (D-PA) and Jeanne Shaheen (D-NH), would also require reasonable accommodations for those limited by childbirth or related medical conditions. The bill includes a hardship exception for employers. Additionally, the bill makes it unlawful to deny employment opportunities to a pregnant employee or applicant because of the required reasonable accommodation, or to require that a pregnant employee take leave if she can otherwise be reasonably accommodated during her pregnancy. The bill also reiterates that employers may not take adverse employment action based upon pregnancy or the taking of leave for pregnancy related reasons. The bill also specifically directs the EEOC to issue regulations that identify and clarify some reasonable accommodations related to pregnancy and childbirth. Currently employers are prohibited from taking adverse employment against an employee because she is pregnant, and there are also some protections available under the Americans with Disabilities Act for employees with pregnancy complications, but they are not currently required to reasonably accommodate employees with regular pregnancies.
Given the recent focus on the treatment of pregnant employees, it may be an important time to evaluate whether your employment policies and actual workplace practices – written or unwritten – adversely impact pregnant employees? If you aren’t sure, now may be a time to revisit your employment policies and management training procedures.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Are Personal Emails Private in the Workplace?
Can companies monitor and read personal emails? While this is no longer a novel question, companies continue to struggle with finding ways to protect their ability to access and monitor employees’ email activity. A review of recent cases reminds us that while the answer is usually situational, the result almost always hinges on the strength and specificity of the company’s computer and email use policy.
In Stengart v. Loving Care Agency Inc LCA (NJ: Appellate Div. 2010) an employee sued the company for discrimination. After Stengart filed suit, the company retrieved emails sent from her personal, password-protected account. The messages had been automatically saved to Stengart’s browser’s cache, and were accessed when the company looked through her work laptop to review all of her saved files. The company introduced the emails at trial despite the fact that they contained conversations between Stengart and her attorney.
Stengart objected to the introduction of the emails, claiming a right to privacy and violation of the attorney-client privilege. The company argued that Stengart had no right to privacy because their computer use policy clearly stated that any and all employee activity on workplace computers could be monitored. The court disagreed with the company, however, and ruled in favor of the plaintiff on the basis that the policy did not expressly notify employees that the policy encompassed emails sent from personal accounts or that emails from personal accounts would be saved to the computer hard drive. The Court found, therefore, that Stengart had a “reasonable expectation of privacy” in the subject emails.
In contrast to the ruling in Stengart, Holmes v. Petrovich Development Co. (191 Cal.App.4th 1047 2011), offers an example of how a clear, well-written policy can protect a company’s interests. Here, the employee sued for discrimination regarding her pregnancy leave. In the process of gathering evidence for its defense, the company accessed emails between the plaintiff and her attorney that she sent from her work email. Holmes claimed violation of her attorney-client privilege, arguing that the messages were private and should therefore be protected. The company argued that because Holmes sent the emails from work, on a company computer and used a corporate email account, there was no legitimate expectation of privacy. Holmes had been advised that employees using company computers to create or maintain personal information or messages had “no expectation of privacy with respect to the message or the information.” The court agreed and ruled in favor of the company.
The distinguishing factors in these cases were clearly (i) the use of a company email account versus a personal email account and (ii) the presence of a clearly articulated policy notifying employees that they should have no expectation of privacy when sending or reading emails at work, using company equipment, or when accessing personal accounts at work or on work equipment.
The increasing ease of access to e-mail makes it ever more tempting for employees to log-on and check their personal accounts while at work or to misuse corporate accounts by sending personal emails during work hours. As technology develops and as employees find it easier to send personal emails, companies must continue to specifically evaluate and address computer use, including emails, as part of their policies. Doing so is vital to defining appropriate usage in order to assure protection for the company.
Similar concerns and cases arise in the context of employee texting. Check back on Friday when we discuss City of Ontario vs. Quon, and outline elements of a strong cell phone, internet, email and computer usage policy.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
Pregnancy Discrimination
In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years. That, however, does not mean that the cause of action is dead. Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor. Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action. Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com
