Two new cases show that courts are coming down hard on the unfair treatment of pregnant applicants and employees. 

She was told not to bother applying

In the first case, Wendy Lamond-Broughton was a lifetime member with Weight Watchers, which meant she was able to apply for jobs with the company so long as she stayed within her “goal weight.”

While she was pregnant with her second child, Broughton applied for an open group leader position. After she told an area manager she was pregnant, however, Broughton was told it wasn’t worth her coming in for an interview.

Why? The manager said Weight Watchers doesn’t hire pregnant women because being pregnant causes women to go over their goal weight. (Broughton was in her fifth month of pregnancy at the time and, though she was five pounds over her goal weight, was still within her goal range.)

The supervisor added that a person who’s already working for Weight Watchers when she becomes pregnant can remain employed (even if they go over their goal weight) but that no one could be hired while pregnant.

Two different policies? Hmm …

Upset, Broughton then went to the Equal Employment Opportunity Commission, which sued on her behalf.

Weight Watchers admitted that its area manager had directly discriminated against Broughton, but said that Broughton wouldn’t have been hired anyway because she was over her goal weight.

A court didn’t take too kindly to that policy, however, citing the company’s differing policies on pregnant applicants and pregnant employees as the smoking gun.

The judge noted that the separate policies raised the question of whether the goal weight policy had any real connection to an applicant’s ability to perform a group leader job. That, plus Weight Watchers’ admission that “pregnant group leaders can effectively communicate in their positions without destroying the credibility of the WW program,” was enough to send the case to a jury.

Careful of ‘objective’ mindsets

Gerald L. Maatman Jr. and Howard M. Wexler, writing on the Workplace Class Action blog, had an important takeaway for companies with potentially similar “objective” policies:

Employers seeking safe harbor behind an “objective” policy must be prepared to defend the policy and explain the business necessity behind the policy – which Judge Borman held Weight Watchers wholly failed to accomplish in its motion.

The case is EEOC v. The WW Group, Inc.

Complications led to restrictions

In the second case, Kerry Smith was working for the Center for Organ Recovery and Education when she found out she was pregnant.

Shortly thereafter, she began experiencing complications, and her doctor restricted the hours she could work.

When Smith told her boss about the restriction, the manager called a meeting with other managers — and decided to terminate Smith. The catch: Smith could have her job back if the restriction was lifted.

She was denied a 6-week extension

But the next day, Smith’s boss told her she could actually keep her job so long as she went on FMLA leave right away. That was because Smith’s request for a reasonable accommodation of a reduced work schedule had been denied.

While on leave, Smith underwent an emergency cesarean section and, tragically, her premature infant died shortly after birth.

When Smith’s FMLA leave was about to expire a month later, Smith asked for a six-week extension to recover from surgery complications and the trauma of losing her baby.

Instead, the supervisor fired her.

Was the manager personally responsible?

Smith filed suit, claiming that her manager interfered with her FMLA rights by forcing her to take leave instead of accommodating her. She also claimed disability violations for failure to accommodate her pregnancy issues. And, most interestingly, Smith filed to have her supervisor held personally responsible.

The court sided with Smith on all counts — even the personally liable supervisor one. That’s because Smith’s supervisor had the power to hire and fire — and made Smith take FMLA instead of firing her. That meant the manager could be liable under FMLA law.

And if you’re wondering about the pregnancy/ADA claim, you’re right that pregnancy normally doesn’t qualify as a disability. But the complications due to the pregnancy may have made Smith disabled — and could have meant the company should have accommodated Smith’s reduced-hours request.

And finally, as you know, once certain types of employee leave run out, disabled workers may be entitled to additional leave as part of the reasonable accommodation process. This company failed to look into that at all.

Now the case is off to a jury, and you know what that means — an expensive settlement or a lengthy trial.

The case, courtesy of The HR Specialist, is Smith v. Center for Organ Recovery and Education.

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