Plaintiff had been working for a local grocer for two years when, in the fifth month of her first pregnancy, she started to suffer sharp pains in her abdomen. As it turned out, the baby had dropped into her cervix. She was at risk of preterm labor, which could have serious and devastating consequences for her unborn child. Her doctor gave her a note to give to her employer, with instructions that she avoid heavy lifting. For two weeks, her employer acquiesced, allowing her to avoid carrying boxes of chicken or other supplies in the deli area. But then suddenly, after a follow-up doctor’s visit, her manager informed her that allowing such lifting restrictions was against the store policy. The 24-year-old was sent home, reeling, fearful for how she would pay her bills with a baby on the way.
She has now filed a class action pregnancy discrimination lawsuit, seeking a change in the store’s policy, which she says violates the Pregnancy Discrimination Act. Both state and federal laws do protect pregnant workers, though sometimes the interpretation gets muddled. The Tennessee Human Rights Act & Disabilities Act prohibits housing discrimination on the basis of familial status, but in the scope of employment, most pregnancy discrimination claims are filed under gender discrimination provisions. At the federal level, the Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964, and prohibits sex discrimination on the basis of pregnancy. This amendment prohibits discrimination on the basis of one’s sex – which can include pregnancy, childbirth or related conditions. Women who are affected by pregnancy, birth and related medical conditions are to be treated the same for all employment-related purposes – including those who may not be so affected but similar in their inability to work.
In California, employers with five or more employees have to make medically advisable, reasonable accommodations for those who are pregnant. This may include (but is not limited to):
- Providing a stool;
- Offering additional breaks;
- Offering relief from heavy lifting;
- Flexible scheduling to accommodate morning sickness/ prenatal appointments
- Lactation accommodations (for nursing mothers).
The law stipulates that pregnant women may be entitled to a job transfer upon request, if it can be reasonably accommodated. However, the employer isn’t required to create an additional job, fire another employee, transfer another employee with more seniority or promote the pregnant worker to a position for which she is not qualified.
Still, California has more protections against pregnancy discrimination than most other states.
In the Tennessee action, complainant alleges workers are put in a position of risking their health or the health of their unborn child or losing their job. The lawsuit was filed in federal court and involves 90 stores across three states, which affects more than 12,000 workers.
Plaintiff says that without a job, she was unable to pay her rent and was forced to move in with her grandmother.
A company spokeswoman said the firm had not yet received a copy of the lawsuit and could not comment. However, in response to a complaint filed with the U.S. Equal Employment Opportunity Commission on plaintiff’s behalf, the company indicated it had mistakenly placed the worker on leave. The EEOC found “reasonable cause” to support a finding of pregnancy discrimination in this instance. Plaintiff was eventually allowed to return to work as a cashier, where she earned $7.85 an hour. However, she is now fighting for compensation for the seven weeks she was forced to take off work, as well as a change in policy.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Kroger sued by Nashville woman for pregnancy discrimination in class action suit, Nov. 15, 2016, By Jamie McGee, The Tennessean
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