Best Pregnancy Discrimination Attorney Reply: What can I do after being fired for being pregnant? Can I be forced to take FMLA early during my pregnancy? Can I sue for wrongful termination if my boss fired me after he finds out that I am pregnant?
There are two words that change your life more than any other, “I’m pregnant.” From that point forward, there is no I, just we. What you eat and drink, a woman shares with her baby. All life plans shift to focus on what you will do when the baby arrives. And, the name that you’ve been called all your life, well that doesn’t matter anymore because your new name is going to be mommy. But, not everything should change when a woman gets pregnant. A working woman’s ability to continue to work as long as she wants should not change at all.
This brings us to pregnancy discrimination and the rights of pregnant working women. Let’s start with the basics. The Pregnancy Discrimination Act of 1978 (“PDA“) amended Title VII of the Civil Rights Act of 1964 to expressly make discrimination against pregnant employees an illegal act of gender discrimination. In Ohio, the Ohio Fair Employment Practice Law (Ohio R.C. § 4112.01et seq.) further makes it unlawful for your boss or manager to discriminate against a working woman because of her pregnancy or pregnancy-related illness or condition. This means that the owner of the company that you work for or some other supervisor cannot wrongfully fire you, demote you, transfer you, cut your hours, or take any other adverse employment action because you are pregnant or because of a pregnancy related condition. Most people understand that it is wrongful termination to be fired for being pregnant and our employment discrimination lawyers have blogged about that before. (See Do I Have To Tell A Potential Job That I’m Pregnant?; My Employer Fired Me Because I Was Pregnant!; Can I Sue If I Was Fired Because I Got Pregnant?). But, it gets more complicated from here.
Does the PDA require an employer to directly accommodate pregnant employees? (See Can I Get Help Performing My Job Because I Am Pregnant?). Well, not directly. It is sort of like a Texas two-step. The PDA madates that employers treat pregnant employees “the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” So, if the employer accommodates other non-pregnant employees by giving reduced hours, light duty or assistance with certain tasks to injured or disabled employees then the company would have to make similar type accommodations for a pregnant employee. But, “wait,” you say, “as a regular reader of your fabulous employment attorney discrimination blogs, doesn’t my boss have to reasonably accommodate disabled employees?” Why, yes they do under Americans with Disabilities Act (“ADA“) and Ohio’s Revised Code § 4112.01. (See How Do I Get A Disability Accommodation For My Job?; My Employer Will Not Provide Me With A Reasonable Accommodation). So, since an employer must admit that it accommodates disabled employees to be compliant with the ADA and Ohio law, it must give the same accommodations to pregnant woman. To that end, the employer should be re quired to go through the interactive process with a pregnant employee to determine if they can agree on a reasonable accommodation for pregnancy related conditions or limitations.
Got all of that? Good. Now, let’s apply these laws to an example. Alyssa Gilliam worked for Walmart at its Distribution Center in Menomonie, Wisconsin. As you probably can guess, Gilliam became pregnant and asked her boss and human resources (“HR”) to accommodate pregnancy-related lifting restrictions given by her doctor. According to the lawsuit, Walmart responded by saying that it only provided light duty to employees with workers’ compensation related restrictions. If true, you can already see the “not treating the same” violation discussed above. Gilliam next made a series of different work accommodation requests, such as light duty, transfer to a less physically demanding position, shorter work days, a chair to sit in as needed, and additional breaks. According to the Court’s opinion, some boss or HR representative at Walmart denied these requests, which forced Gilliam to take intermittent leave under the Family and Medical Leave Act (“FMLA“) and then transfer in to a part-time position. As a result of the transfer to part-time, Gilliam obviously had a cut in net pay and lost her benefits.
Next, Gilliam submitted a doctor’s note to Walmart that required a five-pound lifting restriction. In response, the lawsuit alleges that the employer put Gilliam on involuntary, unpaid leave under the FMLA for the remaining two months of her pregnancy. Now, this is another problem – employers cannot force employees to take FMLA leave when the employee’s doctor says the employee can perform the job. (See Top Pregnancy Discrimination Lawyer Reply: Can I Be Sent Home From Work Because I’m Pregnant?; Lawyer: Can I be forced to take Family Medical Leave Act?). But, there is not an immediate claim for FMLA interference or retaliation when the forced leave starts, but only after the employee has requested leave and exhausted all his or her 12 weeks. The thought is that the employee has no damages or is not adversely affected until that employee has lost the time that is actually needed.
Fast forward a little and Gilliam sues Walmart on behalf of herself and a class of other similarly treated women. Of course, Walmart then moves the trial court to dismiss the complaint, arguing the employee plaintiff’s “complaint includes no allegations that would suggest that other pregnant associates experienced the same treatment as Gilliam, such as details about whether defendant’s decision was motivated by a common policy, who else was denied pregnancy-related accommodations, who received accommodations unrelated to pregnancy and whether others receiving accommodations were similar to Gilliam in their ability or inability to work.”
A few days ago, the trial court rejected Walmart’s position, holding:
Plaintiff alleges that from 2014 to October 2017, defendant denied requests for accommodations for pregnancy-related medical restrictions at the Menomonie store, even though it provided light duty to similarly-situated, non-pregnant employees with work-related injuries. It further alleges that defendant told Gilliam that light duty work was available only to employees on workers’ compensation and not to pregnant employees. In addition, plaintiff included its class allegations in the charge of discrimination it issued in May 2018. These allegations are sufficient to place defendant on notice of the class claim that plaintiff seeks to pursue, identifying a general policy with respect to pregnancy-related accommodations applied by defendant at its Menomonie store during a specific time period. At this early stage, it is not necessary for plaintiff to identify the non-pregnant employees who were treated differently or the nature of their job functions or accommodations. Carlson, 758 F.3d at 827 (plaintiff not required to plead “existence of similarly situated comparator”); Concentra Health Services, 496 F.3d at 780 (“[A] plaintiff might sometimes have a right to relief without knowing every factual detail supporting its right; requiring the plaintiff to plead those unknown details before discovery would improperly deny the plaintiff the opportunity to prove its claim.”).
Let’s first talk about what this decision is not. It is not a decision on the merits giving the employee the win. It only gives the employee the opportunity to move forward with the claim. But, it is very important holding because it means that employers cannot hide information and documents from the employee that are needed to prove the claim and then get the case dismissed because the employee does not have those same documents. So, if you are even thinking that you have been discriminated against or wrongfully fired, not only because of pregnancy, but based on your race/color, religion, gender/sex, national origin, age, or disability, or because you filed a Workers’ Compensation claim or took FMLA leave, you don’t need all of your evidence to start the claim. Inf fact, most often that evidence will come while working with an employment law attorney, who will be in the best position to get that evidence during discovery after the lawsuit has already been filed.
If you are facing discrimination or harassment or were wrongfully fired by your boss simply because you are pregnant, protect your legal rights — call the right attorney. Under federal and Ohio employment laws, employers cannot harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully discipline a female employee just because she got pregnant. When you call the right attorney to schedule a free and confidential initial consultation, you will meet with an attorney from Spitz, The Employee’s Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims. Our pregnancy discrimination lawyers know your rights and will fight to protect them. Call our office at 866-797-6040.
The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “What should I do if my boss fired me what he found out I was pregnant”, “I’m being discriminated against based on my pregnancy,” or “How do I get light duty during my pregnancy”, your best option is to contact an Ohio attorney to obtain advice with respect to pregnancy discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.