Some employers unwisely adopt policies forbidding women from working in certain jobs because of the risk of harm to a fetus. Courts have ruled that a blanket “fetal protection” policy that prohibits the employment of fertile women in jobs that expose them to certain toxic materials constitutes sex discrimination.
|
|
|
|
|
 |
Pregnancy Discrimination Update:
Sea Captain Unlawfully Terminates
Pregnant Shipmate
By Christopher W. Olmsted
Zibute Scherl loved boating, and she had made a career of it. She was a licensed Merchant Marine Officer who had worked on a variety of vessels, including a 60 foot fishing yacht as a second captain.
Ms. Scherl applied for and was hired as a deckhand on a 70 foot yacht, El Navegante, owned by an electrical contractor SASCO Electric. The yacht was used for entertaining SASCO clients, including a number of three-night fishing trips in Mexico from April to July each year.
Twelve months later, in January 2004, she was promoted to second captain. At this time and at all other times she received favorable performance reviews.
Between The Devil And The Deep Blue Sea
One month later, in February 2004, Ms. Scherl informed the yacht captain, David McIntyre, that she was pregnant. McIntyre was admittedly disappointed by the news because he thought Scherl's pregnancy would impact her working on the yacht. He said that in his experience, “mothers do not want to work in the boating business.” In addition, he thought her plan to work as long as possible during her pregnancy was "cavalier." He also had liability concerns.
The captain discussed the matter with a deckhand. He expressed concern about Scherl's exposure to chemicals and fumes as well as the potential she could slip and miscarry. He told the deckhand that he could not take Scherl to Mexico and was going to have to find someone else.
The captain told Ms. Scherl she would need to get a medical release from her doctor in order to make the upcoming trip to Mexico in late April 2004.
Ms. Scherl obtained the note, though she never gave it to her employer. The doctor’s release indicated that Ms. Scherl was not incapacitated by and did not have any work restrictions associated with her pregnancy in February 2004. However, the release further indicated that, after May 10, 2004, which was approximately when Scherl's pregnancy became viable, Scherl should not work where she could be knocked over and should not be out to sea for several days at a time.
A Deep Six: The Layoff
At the end of February 2004, SASCO instructed Captain McIntyre to layoff all crew except himself and one deckhand, due to budget constraints. He would be permitted to hire a part-time contract laborer for the Mexico trip.
Captain McIntyre informed Ms. Scherl that she would be laid off. He decided to keep a more recently hired male deckhand. He also decided to terminate his wife, who had worked as a crew member, but after one week he decided to hire her back as a contract laborer.
Captain McIntyre was alleged to have commented to several individuals that he laid off Ms. Scherl because she was pregnant. Ms. Scherl also claimed that during a telephone conversation, the captain told her that she had not done anything wrong on the yacht and he would not have terminated her employment if she had not been pregnant.
In April, McIntyre hired a contract laborer. Additionally, when his deckhand resigned due to a family emergency, he hired a replacement who had no boating experience, but he did not call Ms. Scherl.
Batten Down The Hatches: The Lawsuit
Many discrimination lawsuits are filed in state civil court directly by the individual employee, who is represented by her own attorney. This case was a little different.
Ms. Scherl filed a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH subsequently issued an accusation alleging SASCO discriminated against Scherl in violation of FEHA by terminating her employment because of her pregnancy.
The DFEH prosecuted the case itself in an administrative forum before the Fair Employment and Housing Commission (FEHC). An administrative law judge assigned by the FEHC heard the case over a four day period, and ruled in favor of Ms. Scherl.
The FEHC administrative law judge awarded Ms. Scherl backpay and $85,000 in emotional distress damages. The judge also found there was clear and convincing evidence of oppression or malice by SASCO and imposed an administrative fine of $25,000.
SASCO appealed by filing a petition for administrative mandamus with the superior court. (This is a procedure used to appeal administrative law decisions). The trial court denied the petition, and SASCO appealed to the court of appeal.
High And Dry: Court Of Appeal Upholds Award
The court of appeal determined that the ruling was well supported by evidence, and should not be overturned. The court noted that the following facts were of particular significance:
Captain told Scherl she would not have lost her job if she had not been pregnant.
Captain told Scherl he laid her off in part because she was too cavalier about working while pregnant.
Captain told others that the pregnancy was one of the reasons he let Scherl go.
Captain later claimed that he let her go because she could not dock the yacht, but evidence showed that she could do so.
Captain never attempted to recall Scherl after the layoff, and instead hired workers with no experience.
SASCO argued that even if it was liable, it should not have to pay Ms. Scherl backpay for the period of time that she was incapacitated due to pregnancy (May to September 2004). The court refused to reduce the award. SASCO failed to show that Ms. Scherl’s pregnancy work restrictions could not have been accommodated in some way by temporarily assigning her other work.
The court also upheld the $25,000 penalty. In determining whether to impose an administrative fine, the Fair Employment and Housing Commission considers whether the employer's conduct was willful, intentional, or purposeful; the employer refused to prevent or eliminate discrimination; the employer consciously disregarded its employee's rights; the employer's conduct was unlawful; the employer engaged in intimidation and harassment; the employer's conduct was without just cause or excuse; and the employer violated FEHA multiple times.
In this case, the appellate court found sufficient evidence to support the penal award. Once the captain learned of the pregnancy, he immediately decided that Ms. Scherl could not work on the boat. This supports a finding of willful conduct. Further, the court noted that SASCO’s layoff decision came suspiciously close after Ms. Scherl’s announcement of pregnancy. Plus, she had just been promoted and another deckhand hired. The sudden need for a layoff did not make sense to the court, and was believed to be pretext. In combination, the evidence demonstrated malicious conduct on the part of SASCO.
Analysis and Practical Tips
Both California and federal law prohibit pregnancy discrimination. Under federal law, discrimination on the basis of “pregnancy, child birth, or related medical conditions” is considered a form of sex discrimination under Title VII of the Civil Rights Act of 1964 as amended. (42 USC § 2000e(k)). Title VII requires that women affected by pregnancy, childbirth or related medical conditions must “be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” A similar rule can be found in California’s Fair Employment and Housing Act (FEHA), which also includes pregnancy discrimination as a form of sex discrimination.
Some employers unwisely adopt policies forbidding women from working in certain jobs because of the risk of harm to a fetus. Courts have ruled that a blanket “fetal protection” policy that prohibits the employment of fertile women in jobs that expose them to certain toxic materials constitutes sex discrimination. The fact that an employer may be motivated by a desire to prevent endangering unborn children is immaterial.
Similarly, adopting a blanket policy prohibiting pregnant women from working in certain jobs can lead to pregnancy discrimination claims. In the SASCO case, the ship captain assumed that a pregnant woman could not work on a ship, but the employee’s doctor concluded otherwise (she could work for a while, but there were restrictions later in the pregnancy).
Some positions are in fact medically unsafe for a mother and child, and an ill-informed doctor can make a poor judgment call. An employer can greatly assist a doctor unfamiliar with the occupation by providing a thorough accounting of all job duties and environmental exposures. What are the hours and days of the shifts? How much weight must be lifted? How much standing, bending, climbing, and other activity must the employee engage in? What are the relevant environmental factors…heat, cold, slipperiness, fumes, toxins, etc? Incorporate these criteria into a medical certification form (which can be used for any medical condition) and, as to each criterion, require the doctor to note any limitations.
Neither California law nor federal law offers special protection to pregnant employees from termination due to poor performance or from reductions in force. However, where pregnancy is the motivating factor for termination, the adverse action is unlawful. In the SASCO case, the court concluded that although the company claimed that Ms. Scherl was laid off, the evidence showed that the layoff was just a cover for terminating her on account of pregnancy.
Although an employer has the right to take action against a pregnant employee for purely legitimate reasons, a skilled employee lawyer can make honest decisions look suspect. The more rational and objective a decision, and the more consistent it is with prior personnel decisions, the more likely a company will avoid second-guessing by a plaintiff attorney. For example, assume an employee who happens to be pregnant also experiences a 20% reduction in production, or a similar increase in errors, or in tardiness. Company policy states that this is unacceptable. Supervisors have warned the employee to act otherwise. Similarly situated employees have been terminated for the same issues. The company has an objective basis for terminating the employee.
Supervisor training can go a long way toward eliminating bias claims. The ship captain in the SASCO case thought and said all of the wrong things. Had he been forewarned that his preconceptions about pregnant employees were incorrect, and he received basic training on the proper protocols, the company might have avoided litigation. Consider hiring an HR expert or employment law attorney to provide a short training session on pregnancy and other disability/leave rights.
Download entire September 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
|
Copyright © 2007 Barker Olmsted & Barnier.
All Rights Reserved. Powered by Infinitude.net Disclaimer.
Privacy Notice. 