Liability for Employer Who Can’t ‘Have a Big Fat Pregnant Woman Working’ at His Restaurant
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The Pregnancy Discrimination Act (PDA), enacted as an amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination against women on the basis of pregnancy. Common types of pregnancy discrimination can include treating an employee less favorably because of a current or past pregnancy, a potential or intended pregnancy, her use of contraception, having or contemplating an abortion, lactation and breastfeeding, or a medical condition related to pregnancy or childbirth.
In light of the broad coverage of the PDA, employers must take care to create and implement neutral policies that don’t discriminate against women on the basis of pregnancy. Could you differentiate between a neutral policy and a policy that appears neutral but actually has a disparate impact on pregnant employees? And is a facially discriminatory policy against a pregnant woman—i.e., a policy that’s explicitly discriminatory—ever permissible?
You’re a Mean One, Sam-I-Am
“Lourdes” worked as a server at Sushi Brokers. Several months into her employment, she became pregnant. And, as is the case with all progressing pregnancies, she started to grow a baby bump. When the restaurant owner noticed Lourdes’ baby bump, he called her shift manager to express his displeasure about having a pregnant employee working at his restaurant.
The owner stated in his voicemail message:
We got Baby Momma. We got—oh, I can’t leave these messages because obviously we’d get in trouble—but it’s just ridiculous. It’s all the same stuff. We can’t have a big fat pregnant woman working in my restaurant. I’m sorry[,] it doesn’t fly. I will not hire them when they walk in. I will not eat them with eggs. I will not eat them with ham. No green eggs; no ham; no nothing.
Rather than play Sam-I-Am and persist until the owner gave in, the shift manager fired Lourdes 2 days later after she refused to accept a reassignment to the lower-paying hostess position.
Lourdes sued Sushi Brokers for pregnancy and gender discrimination. During the litigation, the restaurant admitted that her pregnancy was one of the reasons she was set to be reassigned. Based on the incriminating voice mail, the reassignment, and other evidence, Lourdes asked the court to find Sushi Brokers liable for discrimination.
Sushi Brokers claimed that it has a policy of assigning all overweight employees (or employees who are “too large”) to the hostess position for their protection because it’s unsafe for them to work in the tight, confined areas behind the bar. However, that argument was refuted with evidence that it reassigned only pregnant servers and made accommodations for overweight servers to work in other locations with more room.
In his deposition, the owner even admitted that rather than firing pregnant servers, the restaurant reassigned them to the hostess position. That was direct evidence that Lourdes was discriminated against because she was pregnant.