More on the Anticipatory Pregnancy Discrimination Case From Yesterday

By Jon Hyman

Aug. 7, 2014

Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.
Given all of the questions raised, I thought it best to follow up with some answers.
1. Is this case the rule or an exception?
This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the Americans with Disabilities Act in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the Family and Medical Leave Act protect this employee?
To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the plantiff started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.
3. How do you sleep at night (you #%*&^!)?
I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.
Nevertheless, firing an employee under these circumstances is risky. You need to make sure:
  1. The employee is not FMLA-eligible.
  2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
  3. If there is ever a time to call your employment lawyer before firing an employee, the circumstances of this case would be that time.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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