Can an Employer Fire a Pregnant Employee Due to Concerns About Fetal Health?

Pregnancy Discrimination, Sex Discrimination
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pregnancy test and infertilityEmployers, especially those whose employees are exposed to dangerous situations or toxic chemicals, may fear being sued if workplace conditions result in birth defects, premature birth, or miscarriage of a fetus carried by a pregnant employee. These employers, if they act on those fears, also risk being sued for pregnancy discrimination.

That is the case for Chantoni McBryde, who used to work for RTG Furniture Corp. of Georgia, a Florida company that operates a chain of Rooms To Go furniture stores. McBryde filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), which investigated her case. The EEOC found in McBryde’s favor that the company discriminated against her because of her pregnancy. On McBryde’s behalf, the EEOC filed a lawsuit against RTG in North Carolina federal court. That lawsuit claims that RTG violated the Pregnancy Discrimination Act (PDA), part of Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees due to pregnancy.

According to the EEOC complaint, RTG hired McBryde in 2015 as a shop apprentice at a training facility in North Carolina. Her duties included repairing furniture using various chemicals, including a lacquer thinner with a warning that it could potentially pose a risk to a pregnant woman or her unborn child. About two months after being hired, McBryde told the shop’s trainer that she was pregnant. She later attended a meeting with the shop trainer, the shop manager, and a regional shop manager. McBryde was asked to confirm that she was pregnant, which she did. She was shown the warning on the lacquer thinner and it was discussed with her. McBryde was fired after being told that due to her pregnancy, she could no longer work at the facility. She had no other restrictions that would have prevented her from working.

Accommodating Pregnant Employees

Under the PDA, an employer is supposed to treat a pregnant employee just like a nonpregnant employee who has similar physical limitations. In this case, McBryde had no physical restrictions other than those that her employer imposed on her.

Under the Americans Wth Disabilities Act, an employee can request an accommodation for a sufficiently serious pregnancy-related medical condition. Such a condition would, if left untreated, “substantially limit” one or more major life activities (such as lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (including digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions). Again, McBryde had no such medical condition. Her employer just presumed that she could not perform her job.

It would have been common sense to first see whether RTG and McBryde could have agreed to a transfer to another job that would not expose her to potentially dangerous chemicals. RTG may also have been able to outfit McBryde with sufficient safety equipment to prevent her from breathing in the thinner’s fumes or to limit her physical contact with it. Litigation is just starting, so it’s not yet known whether there were ways that both parties could have worked something out.

Supreme Court Considers Fetal Safety and Sex Discrimination

In UAW v. Johnson Controls, a case involving female employees working in a battery factory, the Supreme Court of the United States looked at a situation where the employer feared that lead used in the battery manufacturing process could harm fetuses being carried by pregnant employees.

In 1977, the company made female employees sign a warning about the dangers that lead posed to their unborn children. In 1982, the company barred the employment of women who could become pregnant unless they could provide evidence that they were infertile or otherwise unable to become pregnant.

The employees’ union filed a lawsuit in 1984 in Wisconsin federal court against the employer. The union asserted claims of pregnancy and sex discrimination on behalf of women who underwent surgery to keep their jobs as well as on behalf a male employee who planned to be a father and who sought leave from work to lower the lead levels in his system. The trial court dismissed the case, and an appellate court upheld the dismissal.

The Supreme Court, on the other hand, found the employer’s bias to be obvious:

Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job…. Respondent’s fetal-protection policy explicitly discriminates against women on the basis of their sex. The policy excludes women with childbearing capacity from lead-exposed jobs and so creates a facial classification based on gender.

The issue was whether the employer’s decision could be justified under the law. The majority of the court found that it could not. The record showed that lead can also affect male fertility, but the company’s actions only pertained to women. Therefore, the Court said, “Johnson Controls’ policy is facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing.”

The court next looked at whether the restrictions were a bona fide occupational qualification (BFOQ) that was reasonably necessary to the normal operation of the factory’s business. This is a valid defense under Title VII. In this case, the employer claimed that fetal safety was the BFOQ at issue. When this defense is asserted, the defendant bears the burden to show that the defense applies. Here, the Court found that:

[T]he safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job… Johnson Controls suggests, however, that we expand the exception to allow fetal-protection policies that mandate particular standards for pregnant or fertile women. We decline to do so. Such an expansion contradicts not only the language of the BFOQ and the narrowness of its exception, but also the plain language and history of the PDA.

After discussing that history, the Court wrote:

[E]mployers may not require a pregnant woman to stop working at any time during her pregnancy unless she is unable to do her work. Employment late in pregnancy often imposes risks on the unborn child…but Congress indicated that the employer may take into account only the woman’s ability to get her job done…. Congress made it clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.… Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.

The Court further stated that there may still be lawsuits claiming that a fetus was harmed by workplace lead exposure, given its order requiring employers to employ women who could be pregnant. Through the PDA, however, Congress showed its intent to prevent discrimination, which takes precedence over state personal injury laws.

Summing It Up

If you’re pregnant and without physical restrictions, and your employer prevents you from working simply because you are pregnant, your employer is probably breaking the law.

  • Unless the circumstances are very unusual, it would be quite difficult for your employer to argue that you’re unable to perform certain work simply because of your pregnancy and the existence of potential threats to your child.
  • It’s ultimately up to the parents to decide what workplace risks they are and are not willing to expose their unborn child to.

As a practical matter, if your employer offers you some kind of temporary change in your work conditions to address its fears of being sued for fetal harm, and that change doesn’t cause any problems for you or affect your pay, hours, or benefits, that is an option to consider. But as far as discrimination law is concerned, if you have no medical restrictions on your work, your employer would have a hard time legally establishing that forcing you out of your job was necessary due to your pregnancy.

If you believe that you’ve been discriminated against because of your pregnancy or fear that your employer’s practices or policies may result in pregnancy discrimination against you, contact our office so that we can talk about your situation, how the law may apply, and what you can do to protect your interests and legal rights.