Did supervisor’s question to pregnant employee reveal bias?

by on October 30, 2013 · 0 Comment POSTED IN: HR Cafe
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“To answer your question, yes, I am going to be having a baby,” employee Shanelle Wilkes told supervisor Clarissa Nyman. “I hadn’t planned to tell you just yet, but I guess word has gotten around, so, yes.”

“Hmm,” Clarissa said. “Well, are you quitting? I mean, I have to arrange for a replacement if you are.”

“No, I’m not quitting!” Shanelle said with emphasis. “Why would you assume that? Anyway, the baby isn’t due for six months, so as far as I’m concerned nothing about my work here has changed.”

Duty to clients
“Let me be the judge of that,” Clarissa said. “As you know, in the home health care field, we have a big responsibility to our clients. We can’t leave them without attention because of scheduling issues.

“So I’d appreciate it if you’d let me know as soon as you can whether you’ll be continuing your employment here,” the supervisor went on. “Continuity of care is essential, and I need to know who’s going to be available and when.”

“Don’t worry, I’ll give you at least 30 days notice if I do decide to stop work before the baby comes,” Shanelle said.

Piling it on?
In the succeeding weeks, Shanelle felt that Clarissa was piling on duties that she hadn’t had before. Clarissa directed Shanelle to handle the client problems and queries that she, the supervisor, had previously addressed, and she started making Shanelle complete two new, time-consuming monthly reports. In addition, Clarissa instituted a weekly meeting between the two of them to scrutinize Shanelle’s progress.

When Shanelle complained, Clarissa told her that she wasn’t being asked to do anything that wasn’t in her job description.

A couple of months after disclosing her pregnancy, Shanelle arrived at a bedridden client’s home only to find her dead in bed and the woman’s son obstructing her from examining the client. The employer accused her of failing to report the incident according to company policy, and fired her.

Shanelle sued for pregnancy discrimination. Did she win?

The decision
Yes, Shanelle won a key legal victory when a federal appeals court said her pregnancy discrimination case was strong enough to be heard by a jury.

For one thing, the court said, the company didn’t make clear exactly how she had violated policy. But more important, supervisor Clarissa said and did things that a reasonable jury might well find discriminatory on the basis of Shanelle’s pregnancy.

The court looked especially hard at Clarissa’s question about whether Shanelle was quitting. The company tried to portray it as an attempt by the supervisor to find out if Shanelle “intended to return to work after her pregnancy.” This question, the company claimed, showed that its intention was to retain Shanelle, not get rid of her.

But the court noted that the way the company paraphrased the question and the way Clarissa originally phrased it were quite different. The difference, the court said, “may be subtle, but it is significant in terms of reflecting animus.” In other words, the way Clarissa asked the question tended to demonstrate hostility toward Shanelle on account of her pregnancy.

Takeaway for supervisors: First, don’t ask employees whether they’re pregnant. That question can be interpreted as discriminatory all by itself. Even when an employee tells you unprompted that she’s pregnant, be careful how you react. Congratulations are in order. It’s permissible to remind her of the Family and Medical Leave Act and any other leave your organization makes available. But don’t ask about her plans or timing. Let her tell you when she’s ready.

Based on Hitchcock v. Angel Corps, No. 12-3515, 7th Cir., 6/11/13.

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