If you were the judge: Was she fired for morning sickness?

by on June 25, 2012 · 8 Comments POSTED IN: HR Cafe
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“This is creating an unfair burden on your co-workers,” customer service supervisor Marlene Scopes told employee Kimberly Dean. “When you keep rushing off to the bathroom in the middle of phone calls, somebody else has to pick them up for you and drop their own work.”

“I understand that you can’t control your morning sickness, but we’ve tried to work with you,” Marlene went on. “I said you could come in an hour or two late if that would help, but you chose not to.”

“Come in late and do less than 30 hours a week so I’m not eligible for benefits!” Kimberly riposted. “I need them now that I’m pregnant.”

“That’s not what I intended,” Marlene said. “And as you remember, I suggested you ask your doctor what further accommodations we could make. You never did.”

Performance drop
“Anyway, that’s all water under the bridge now,” Marlene said. “Your performance has been poor for weeks and hasn’t improved despite a written warning. Not only do you leave your colleagues holding the bag, your customer records are in disorder. I have to terminate you.”

Kimberly stared at Marlene for a long moment. “There’s a word for that,” she said at last.

“What word?” Marlene asked.

“Discrimination,” Kimberly said. “You can’t get away with dumping me because I’m pregnant and inconvenient for you. You’ll be hearing from my lawyer.”

True to her word, Kimberly did sue her former employer for pregnancy discrimination. Did she win?

The verdict
No, Kimberly lost her pregnancy discrimination lawsuit. The court ruled that supervisor Marlene remained within the law in firing her for poor performance.

The court said the Pregnancy Discrimination Act doesn’t require preferential treatment for pregnant employees, and that was essentially what Kimberly was asking for. She wanted free rein to leave her work station whenever she felt nauseous, but no other employees were frequently allowed to rush away in the middle of customer transactions.

Equal treatment
The law requires that supervisors treat pregnant employees in exactly the same way they treat others. If you supervise a pregnant employee:

  • Don’t be the first to raise the subject of the pregnancy, even if it’s visible. If the employee wants to talk about it, she will do so when she’s ready.
  • Don’t assume that the employee is unable to do her work, or some portion of it, because of her pregnancy.
  • With HR, do consider a reasonable work accommodation if the employee asks.

Cite: Elam v. Regions Financial Corp., No. 09-2004, 8th Cir., 4/19/10. Fictionalized for dramatic effect.

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8 Comments on This Post

  1. tracyek
    June 25, 2012 - 1:27 pm

    I believe that the courts sided with the terminated employee in large part because the accommodation would have left her without benefits.  

  2. tracyek
    June 25, 2012 - 1:27 pm

    I believe that the courts sided with the terminated employee in large part because the accommodation would have left her without benefits.  

  3. Zobeld
    June 25, 2012 - 1:33 pm

    The employer documented the poor performance, the employee did not provide additional information on ways to accommodate the situation.  The employee basically admits to coming into work just to get the hours for benefits even though she is not able to perform her job effectively.  From the article I cannot tell if she was an excellent worker before the pregnancy.  I have never been pregnant but I suspect it also affects your emotions.  Tough call, but I think she will win, mostly due to legal advantages.

  4. Zobeld
    June 25, 2012 - 1:33 pm

    The employer documented the poor performance, the employee did not provide additional information on ways to accommodate the situation.  The employee basically admits to coming into work just to get the hours for benefits even though she is not able to perform her job effectively.  From the article I cannot tell if she was an excellent worker before the pregnancy.  I have never been pregnant but I suspect it also affects your emotions.  Tough call, but I think she will win, mostly due to legal advantages.

  5. Gbright
    June 25, 2012 - 2:28 pm

    There’s lots of complications here. The employee was clearly uneducated regarding preservation of her benefits during FML.  Or possibly the employee didn’t want to lose a couple hours of pay each day.  But what’s the difference to the employer if Kimberly comes into work, and is temporarily unavailable, or if she takes intermittent leave, and is regularly unavailable.  My experience with customer service is that you don’t just bring in a temp for a couple hours a day.  I think that the employer could have managed this situation a bit better, instead of firing Kim.  At the end of the day, I think a jury will side with Kimberly.

  6. Gbright
    June 25, 2012 - 2:28 pm

    There’s lots of complications here. The employee was clearly uneducated regarding preservation of her benefits during FML.  Or possibly the employee didn’t want to lose a couple hours of pay each day.  But what’s the difference to the employer if Kimberly comes into work, and is temporarily unavailable, or if she takes intermittent leave, and is regularly unavailable.  My experience with customer service is that you don’t just bring in a temp for a couple hours a day.  I think that the employer could have managed this situation a bit better, instead of firing Kim.  At the end of the day, I think a jury will side with Kimberly.

  7. Jnelson
    June 27, 2012 - 4:03 pm

    Well as can be seen, the employee did not win the case.  My comment is not about the verdict per se but about this statement: “She wanted free rein to leave her work station whenever she felt nauseous, but no other employees were frequently allowed to rush away in the middle of customer transactions”.  While I certainly understand the issue of continuity of coverage in a customer service environment, I sincerely hope that ANY employee who felt nauseous would “be allowed to rush away”.  I wouldn’t want to be sitting next to someone who did not “rush away” in time.

    Seriously, I think that both parties needed to have more open communication in which case I feel that the firing could have been prevented.

  8. Jnelson
    June 27, 2012 - 4:03 pm

    Well as can be seen, the employee did not win the case.  My comment is not about the verdict per se but about this statement: “She wanted free rein to leave her work station whenever she felt nauseous, but no other employees were frequently allowed to rush away in the middle of customer transactions”.  While I certainly understand the issue of continuity of coverage in a customer service environment, I sincerely hope that ANY employee who felt nauseous would “be allowed to rush away”.  I wouldn’t want to be sitting next to someone who did not “rush away” in time.

    Seriously, I think that both parties needed to have more open communication in which case I feel that the firing could have been prevented.

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