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Title VII, through the Pregnancy Discrimination Act (PDA), has expressly prohibited pregnancy discrimination since 1978. Thirteen years later, the Supreme Court, in Johnson Controls, told us that even well-intentioned, but facially discriminatory, gender and pregnancy based employment policies — like Johnson Control’s policy of prohibiting fertile women from working on a battery line because of reproductive health risks — violate Title VII unless supported by a bona fide occupational qualification (BFOQ).
Apparently, at least one Texas employer never got the memo about the PDA or Johnson Controls.
I recently read an EEOC press release announcing that a federal judge in Texas awarded nearly $75,000 to Sharmira Johnson, a former employee of United Bible Fellowship Ministries (UBFM), in a lawsuit filed by the EEOC. The non-profit UBFM maintained a “no pregnancy in the workplace” policy. The policy actually prohibited the continued employment of pregnant employees in direct client-care positions, and it prohibited the hiring of pregnant applicants for such positions. In other words, if you’re pregnant, go home (or don’t bother applying).
The EEOC’s lawsuit arose out of UBFM’s decision to terminate Ms. Johnson, a technician who provided home care (housecleaning, light laundering, administering medication, cooking, assisting with personal hygiene) to disabled individuals.
UBFM admitted that Ms. Johnson performed her job well, that she had no work-related restrictions, and that the organization terminated her employment solely because of her pregnancy. UBFM argued (unsuccessfully) that Ms. Johnson’s safety, and the safety of her unborn child, justified the termination. Sounds a whole lot like what Johnson Controls argued (unsuccessfully) to the Supreme Court in 1991.
To the extent there are any other UBFMs out there, this case hopefully will serve as a wake-up call. Facially discriminatory gender and pregnancy-based policies and practices, even if well intentioned, are illegal, except in those very limited (read: very rare) circumstances in which the employer can establish that the policy or practice is supported by a bona fide occupational qualification (a determination you should never make without consulting counsel).
As the EEOC noted in its press release:
This decision is another in a long line of federal court cases rejecting employer policies based on assumptions and stereotypes about a pregnant woman’s inability to work. Employers cannot impose paternalistic and unsubstantiated views on the alleged dangers of pregnancy to exclude all pregnant women from employment.
So, the next time you become aware of an employee’s pregnancy, do not take unilateral action out of fear or concern for the health of the employee or the fetus. That paternalistic approach is precisely what Title VII and the PDA prohibit. If, however, a pregnant employee requests a pregnancy-related accommodation (such as a reduced schedule or a change in job duties), then you may well have an obligation to provide an accommodation under the ADA and the PDA.
