Jul 1, 201308:31 AMForward HR
with Diane Hamilton and Nilesh Patel
Things not to say or do when dealing with a pregnant employee
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Considering the amount of training and advice available to organizations, there are some things supervisors should know not to say to a pregnant employee. For example, don’t suggest an abortion because of concerns of future absences. Don’t ask if a pregnancy means the employee will be quitting soon. Why? As the employer in Hitchcock v. Angel Corps, Inc. learned, such behavior is the start to a textbook example of how to stumble into an expensive lawsuit and jury trial.
Setting the scene for the lawsuit
The employer’s troubles started with a supervisor asking a pregnant employee whether she would be quitting after she gave birth. The employee was only three months pregnant at that time and said she was unsure, as it was too soon to tell. In response, the supervisor (a woman) said a decision needed to be made as quickly as possible, with a minimum of 30 days’ notice. Following that conversation, the employee’s workload was significantly increased. She was also required to meet with the supervisor on a weekly based to review her progress.
On the face of it, the supervisor’s comments appear insensitive, but not outright proof of having a problem with the employee’s pregnancy. Standing alone, the extra workload seems legitimate, as it was within the range of the employee’s job description. The weekly performance meetings also seem reasonable. The employee had child care issues that prevented her from working more than 40 hours in a week and felt it was nearly impossible to complete the tasks. So perhaps the weekly meetings were in response to the employee’s difficulty handling the extra workload.
However, for the employee on the receiving end, each supervisory action likely raised the question of whether she was doing something wrong or whether the supervisor was reacting negatively to the pregnancy news and making life difficult for her so she would leave on her own. The supervisor’s actions, coming just after the news about the pregnancy, could easily have made the employee think she was facing pregnancy discrimination.
The situation got really bizarre when the employee went to a potential client’s home for an initial assessment. The client’s son only let the employee get a glimpse of his mother, and the employee suspected the client was possibly dying or already dead. It was a harrowing experience for the employee, and she reported it to the supervisor. The supervisor contacted the police, and it was later revealed that the client had already been dead for two or three days by the time the employee visited the house.
Shortly after the investigation, the employee was fired. The supervisor filled out a disciplinary action form, which stated, “This employee completed a full admission on an expired client … [the employer] and its management staff feel that as a result of this employee’s actions she compromised the health and safety of this client.”
Someone really should have paused and asked how the employee could compromise the health and safety of a dead person.
Heading for a jury trial
The employee had a ready claim for pregnancy discrimination given the reaction when the supervisor learned of the pregnancy, the immediate comments about whether the employee would be quitting, followed by the timing of the extra work, the scrutiny of her performance, and finally the bizarre reason for her termination. Bolstering the employee’s argument that the supervisor had a problem with pregnant employees was the testimony of a former employee, who stated that the supervisor had suggested she get an abortion because another child might negatively affect her attendance.