Employment Law

New Employees and the Pregnancy Discrimination Act

As employers cautiously return to the hiring market, they

should make certain that they have in place hiring prac-

tices that permit maximum flexibility if new hires fail to

perform as expected. One dilemma employers may con-

front is a new employee who accepts an offer of

employment, or even begins work, but then informs the

employer that he or she will need significant time off in

the near future. This situation may arise, for example,

when a newly hired employee is pregnant or adopts a

child and desires to take a leave of weeks or months dur-

ing the first three to six months or year of employment.

The employer then faces the question of whether it is free

to rescind a job offer or terminate employment because

of this unanticipated absence.

This Alert discusses employee hiring and termination, as

affected by the Pregnancy Discrimination Act of 1978,

42 U.S.C. § 2000e(k) (“PDA”). Because this Alert only

addresses hiring practices and potential terminations dur-

ing the first 12 months of employment, the provisions of

the federal Family and Medical Leave Act do not apply.

EMPLOYER LIABILITY FOR ANTICIPATORY

ACTION

The PDA prohibits employers with 15 or more employ-

ees from firing, refusing to hire or promote, or taking

other adverse action against an employee because of her

pregnancy. The PDA does not require that employers

give pregnant employees “special treatment.” However,

employers must treat pregnant employees the same as

they would treat non-pregnant employees in comparable

situations. For example, an employer may terminate a

pregnant employee for excessive absenteeism, as long as

the employer also fires non-pregnant employees who are

excessively absent. This is true even if the pregnant

employee’s absenteeism is a direct result of her pregnancy

or the birth of her child.

Employers may face liability, however, when a pregnant

employee is fired merely because the employer antici-

pates that the employee will be absent. Courts have held

that it is a violation of the PDA to terminate or refuse to

hire a pregnant individual because of an unsupported

belief that, because of her pregnancy, the individual will

miss work in the future. That sort of stereotypical think-

ing will not pass muster under the PDA.

The Fourth Circuit held that it is a violation of the PDA to

refuse to hire a pregnant applicant based on the unsup-

ported assumption that the pregnancy would cause the

applicant to miss work. Wagner v. Dillard Dep’t Stores,

Inc., 17 Fed. Appx. 141 (4th Cir. 2001). In Wagner, a

woman was given a verbal offer of employment, which

was then withdrawn after the employer discovered she

was pregnant. The employer rescinded the offer because

it believed the woman would miss work due to her preg-

nancy. However, there was no factual basis for this

assumption, because the applicant had expressed the in-

tention to work up to the birth and to take no maternity

leave. Therefore, the court held that, because the em-

JUNE 2004

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Lockhart

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1 State and local laws may apply as well and should be consulted prior to pursuing a particular course of action.

KIRKPATRICK & LOCKHART LLP EMPLOYMENT LAW ALERT

ployer had no valid reason to believe the applicant could

not fulfill the duties of the job, it could not refuse to hire

her solely because of the pregnancy.

Similarly, the Seventh Circuit ruled that it was a potential

violation of the PDA to fire an employee because the em-

ployer thought the pregnant employee would eventually

miss work. Maldonado v. U.S. Bank, 186 F.3d 759 (7th

Cir. 1999). The employee in Maldonado was a substitute

bank teller, a job that required her to be “on call” during

the summer to fill in for vacationing employees. After

the employee disclosed her pregnancy, she was fired be-

cause the employer presumed she would be unavailable

to fill in during the summer months, since the employee’s

baby was due during that critical time. The court held

that this was a potential violation of the PDA, because

the employer could not fire the pregnant employee based

on anticipated absences “unless it ha[d] a good faith ba-

sis, supported by sufficiently strong evidence, that the

normal inconveniences of [the] employee’s pregnancy

[would] require special treatment.” Essentially, an em-

ployer cannot presume that all pregnant employees will

miss a large amount of work; instead, there must be a

strong basis for this belief as to the particular employee.

Finally, in another Seventh Circuit case, the court held

that an employer could fire a pregnant employee if the

employee’s continued presence was necessary for the job

and the employee expressed a clear intent to take extended

leave. Marshall v. American Hosp. Ass’n, 157 F.3d 520

(7th Cir. 1998). In Marshall, the pregnant employee was

hired to plan a conference. The position required a sus-

tained presence in the office in the months prior to the

event. Shortly after starting the job, the employee in-

formed her employer that, because of her pregnancy, she

intended to take an extended leave during the period im-

mediately before the conference. Because the employee

expressed this clear intent to take leave and because the

job required attendance in the office during that specific

time, the court held that the employer had a good faith

basis to believe the employee would not fulfill the re-

quirements of the job. As a result, the court held that it

was not a violation of the PDA to fire the pregnant em-

ployee under those circumstances.

AVOIDING PITFALLS UNDER THE PDA

Employers can minimize the risk of claims by planning

carefully for the hiring process and ensuring that employee

policies are clear and uniformly applied to all job appli-

cants and new employees. For example, employers may

want to adopt some of the following practices to increase

their flexibility:

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Clearly state the requirements of the position—such

as that the job is full-time and that attendance is

critical—in employment notices, during interviews

and in job descriptions.

To protect against a claim for discrimination or wrong-

ful termination, a defendant often has to establish that

the terminated employee could not perform a required

function of the job. By clearly stating job require-

ments such as good attendance, the employer can

demonstrate that a particular requirement has been

applied uniformly to all applicants and is essential to

the position. As a result, if the newly hired employee

then informs the employer that he or she will be un-

able to fulfill this requirement because of the need to

take leave in the near future, the employer will face

fewer risks when terminating the employee if the ab-

sence occurs.

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Adopt written policies that limit leave for new em-

ployees.

An employer may wish to adopt uniform policies that

define available leave during an initial period of em-

ployment, such as the first three or six months or even

longer. Those policies might include:

Vacation does not begin to accrue for the first three

or six months;

Sick leave accrues at a specified rate;

Any short-term disability policy does not apply dur-

ing the first six months of employment; and

Unpaid leave is not available.

If an employee does not meet the attendance requirements

during this period, he or she may be fired without violat-

ing discrimination laws such as the PDA.

MARCH 2004

Kirkpatrick

Lockhart

LLP

FOR MORE INFORMATION, please contact one of the following

K&L lawyers:

Boston Henry T. Goldman 617.951.9156 [email protected]

Dallas Jaime Ramón 214.939.4902 [email protected]

Harrisburg Carleton O. Strouss 717.231.4503 [email protected]

Los Angeles Thomas H. Petrides 310.552.5077 [email protected]

Paul W. Sweeney, Jr. 310.552.5055 psweene[email protected]

Miami Daniel A. Casey 305.539.3324 dcase[email protected]

Newark Marilyn Sneirson 973.848.4028 [email protected]

New York David R. Marshall 212.536.4066 [email protected]

Rory J. McEvoy 212.536.4804 rmcev[email protected]

Pittsburgh Stephen M. Olson 412.355.6496 [email protected]

Michael A. Pavlick 412.355.6275 mpa[email protected]

Hayes C. Stover 412.355.6476 hstov[email protected]

San Francisco Jonathan M. Cohen 415.249.1029 [email protected]

Washington Lawrence C. Lanpher 202.778.9011 [email protected]

Policies such as the foregoing have been upheld by the

Fifth Circuit Court of Appeals. Stout v. Baxter Healthcare

Corp. 282 F.3d 856 (5th Cir. 2002). In Stout, the em-

ployer had in place a policy stating that, during an initial

90-day probationary period, a new employee would lose

his or her position if he or she was absent for more than

three days. The employer further specified that vacation

and medical leave did not accrue during this period. When

the employee missed more than three days during this

probationary period due to pregnancy-related complica-

tions, the employment was terminated. The Fifth Circuit

rejected the employee’s argument that the employer’s

policy had a disparate impact on females, stating that there

was no evidence that she would have been treated differ-

ently if the absences were due to causes other than

pregnancy and stating further that the PDA “does not pro-

tect a pregnant employee from being discharged for being

absent from work even if her absence is due to pregnancy

or to complications of pregnancy, unless the absences of

nonpregnant employees are overlooked.” The ruling in

Stout and other cases makes it critical that the employer

adopt and implement policies that are consistently ap-

plied to all employees. If there is evidence that the

employer has failed to follow such a neutral process, the

employee may be able to establish a disparate impact

claim.

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Ensure that policies are crafted without discrimi-

natory intent, are applied uniformly, and are

designed to cover all classes of employees.

Employers should be aware that facially neutral poli-

cies do not always comply with the PDA. A facially

neutral policy may be considered discriminatory if

evidence suggests it was adopted to target pregnant

workers. Piraino v. Int’l Orientation Res., Inc., 84 F.3d

270 (7th Cir. 1995). In Piraino, the employer hired

an applicant who was pregnant. The employer did

not learn of the pregnancy until after the applicant had

begun work. Two months later, the employer adopted

a facially neutral policy, prohibiting maternity leave

This publication/newsletter is for informational purposes and does not contain or convey legal advice. Please note that information

about prevailing law is limited to the particular state or federal jurisdiction(s) covered by the cited law and cases, and stricter

rules may apply in some states. This newsletter should not be relied upon in regard to any particular facts or

circumstances without first consulting a lawyer.

BOSTON

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DALLAS

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HARRISBURG

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LOS ANGELES

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MIAMI

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NEWARK

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NEW YORK

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PITTSBURGH

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SAN FRANCISCO

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WASHINGTON

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and other sorts of unpaid leave during the first year of

employment. The employer defended the policy, stat-

ing that it merely put in writing a long-standing

unwritten policy. The court ruled, however, that there

were genuine issues of fact regarding the employer’s

intent in adopting the policy. To avoid such a result, it

is recommended that any newly adopted policy apply

only prospectively to persons who begin work after

the policy goes into effect.

By implementing these practices, employers should gain

increased flexibility and should lessen risks as they re-

turn to the hiring market.

LAWRENCE COE LANPHER

[email protected]

202.778.9011

Mr. Lanpher gratefully acknowledges the contributions

of Erika Kane, a summer associate with the firm.

Kirkpatrick & Lockhart

LLP

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