Question:

I have an employee who is pregnant and I am concerned about her ability to do her job safely. I am thinking about putting her on leave or asking her to resign and then I would rehire her after she has her baby if she wants to return to work. Is this legal?

Answer:

Your proposed actions would most likely violate California law. The Fair Employment and Housing Act prohibits employment discrimination based on pregnancy. Discrimination by an employer because of pregnancy constitutes discrimination because of sex, under Government Code sections 12926, subdivision (p), and 12940, subdivision (a). If an adverse employment action is taken against an employee because of her pregnancy, substantial liability can result.

Employers sometimes have misconceptions regarding a pregnant employee’s ability to perform job duties. Although the employer’s motives may be based on a legitimate concern about employee safety, blanket prohibitions against pregnant women working in certain jobs or performing certain kinds of work are a form of pregnancy discrimination under both state and federal law. This is true even if the job is in an industry traditionally considered rugged or hazardous.

These misconceptions can lead to significant liability for employers. A recent case, SASCO Electric, Inc., illustrates that an employer cannot fire a pregnant employee because of unsubstantiated concerns about the employee’s safety and ability to perform her job.

In the SASCO case, the employer maintained a 70-foot yacht to entertain customers and business associates. In 2003, SASCO hired Ms. Scherl to work as a deckhand, and then promoted her to assistant captain in training. A month after her promotion, Ms. Scherl notified her employer that she was pregnant. Her supervisor was disappointed and told her that her pregnancy would “impact” her employment on the boat.

SASCO requested that Ms. Scherl obtain a statement from her physician confirming that she could work without risking her own safety, or the safety of her unborn child. Ms. Scherl’s supervisor then told her to “hold off” on getting the doctor’s statement. Shortly thereafter, SASCO terminated Ms. Scherl’s employment due to budget reasons. In conversations with other SASCO employees after the termination, Ms. Scherl’s supervisor admitted she was laid off because he was concerned about her ability to work safely on the boat while pregnant. However, the evidence established that Ms. Scherl was not disabled by her pregnancy, and that she was able to perform her job with no restrictions.

Ms. Scherl sued SASCO, claiming sex discrimination based on pregnancy. SASCO claimed it laid Ms. Scherl off as part of a company-wide reduction in force, and that it was concerned about her safety during her pregnancy. At trial, SASCO was found liable for sex discrimination based on the employee’s pregnancy.

In your situation, it is important to have the employee provide you with a medical certification from her doctor stating whether or not she can safely perform her job without jeopardizing her safety or the safety of the unborn child. You should give the employee a job description to submit to her doctor so the doctor can properly evaluate whether she can safely perform the job, or if she has any work restrictions. If the doctor states that the employee can continue to work without restrictions, then any adverse action you take against the employee based on her pregnancy may be sex discrimination. If the employee can continue to work, but has work limitations, California law requires the employer to transfer the employee to a less strenuous position if that is what her doctor recommends, and the transfer can be reasonably accommodated by the employer. If the doctor’s statement says the employee cannot safely perform her job due to pregnancy, the employer could grant pregnancy disability leave to the employee. Upon expiration of the approved leave, the employee will be entitled to reinstatement to her job, or a comparable job.

The SASCO case demonstrates that employers’ opinions or stereotypes with regard to what pregnant women can and cannot do on the job cannot be used as a basis for employment decisions. Instead, you need to obtain evidence from your employee’s doctor to guide you in determining what she can and cannot do safely. For more information, visit the Department of Fair Employment and Housing’s website at www.dfeh.ca.gov.
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