Law Office of David Miklas, P.A.

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According to the supervisor, the employee “went ballistic” when the supervisor gave her a date for training. The supervisor determined that she would not permit the employee to perform the duties that required the training because, in her opinion, the employee’s behavior at the meeting was “unprofessional.” Without the supervisor’s approval to do the duties that required training, the employee would be limited to working the “third shift,” ten p.m. to six a.m.The next day the employee was called into a meeting with two of the employer’s owners, and the supervisor. The employee was informed that the employer management was concerned about her high-risk pregnancy.

As amended by the Pregnancy Discrimination Act, Title VII of the Civil Rights Act prohibits employers from discriminating against employees because of pregnancy.

The employee brought her pregnancy discrimination lawsuit under a “disparate treatment,” or intentional discrimination theory. An employee can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using a burden-shifting framework. Direct evidence of pregnancy discrimination is evidence that, if believed, proves the existence of a fact without inference or presumption. Only the most blatant remarks whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.

Can an employer remove a pregnant employee from the work schedule because of her pregnancy and/or the related “high risk” conditions?

The employer filed a Motion for Summary Judgment, but the federal court rejected the Motion. The employer had argued that the employee could not present either direct or circumstantial evidence of pregnancy discrimination. However, the court determined that the employer itself provided direct evidence of pregnancy discrimination, by admitting that management removed the pregnant employee entirely from the work schedule because of her pregnancy and/or the related “high risk” conditions.

“That [the employer] may have done this out of benevolent concern for the health and safety of [the pregnant employee] and her unborn child does not excuse the discriminatory nature of its actions." Carter v. A & E Supported Living, No. 16-00574-N, 2017 U.S. Dist. LEXIS 195838, at *15-16 (S.D. Ala. Nov. 29, 2017)

Because the employer lost its Motion for Summary Judgement at the end of 2017, the next typical step was for the employer to either settle the case, or prepare for a jury trial.

This case is another reminder that it is dangerous from a liability standpoint for an employer covered by the Pregnancy Discrimination Act to take adverse employment actions against a pregnant employee, even if the employer is doing it to protect the health of the mother or baby.

This case reminds Florida employers of the importance of contacting an employment lawyer before making decisions impacting a pregnant employee. If you need assistance in such a situation, contact the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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Here are the facts as reported in a recent lawsuit. Unbeknownst to the employer, the employee was several months pregnant when she was hired. The employer first became aware of the pregnancy approximately one month after the employee began working, when the employee requested that certain training take place during working hours because she often had doctor appointments on her off days due to her high-risk pregnancy. The employee also told the supervisor that her doctor had wanted to admit her to a hospital due to high blood pressure at a recent appointment but didn’t because the employee’s children were with her.

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Specifically, an owner shared her concerns that the employee “was at risk to be hurt and [the owner] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk...” The business owner informed the employee that she would still be willing to let the employee work the third shift. However, the company owner required the employee to first obtain a doctor’s note saying that it was okay for her to perform her duties before she would be placed back on shift. A week later the employee gave the employer a letter, signed by a registered nurse rather than a doctor, stating that the employee “has not been placed on any work restrictions and is deemed medically able to maintain her current work schedule and job functions.” The employee was not returned to the schedule after she provided the note. The employee filed a charge of discrimination and then filed a lawsuit.