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Awe c’mon. An employee is obviously pregnant but you can’t even say the “p” word? Does the mere use of the adjective translate into legal liability? One court recently said “relax;” it’s OK to say a woman is pregnant. Just don’t make any employment decisions based on it or comment negatively. Still, it’s a bit tricky, as this case shows …

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Case in Point: Amy Elam learned she was pregnant soon after she took a job as a senior teller at an Iowa bank. She suffered from morning sickness and had to abruptly leave her teller post between four and 11 times every morning to use the restroom.

Elam’s doctor recommended the bank excuse her from work as necessary. But the bank offered an even more generous accommodation. It told Elam she could wait until her morning sickness subsided befor coming to work each day. She said, "No thanks," and continued to arrive every morning as scheduled.

The situation didn’t improve. Elam continued to leave her station frequently, even in the middle of customer transactions. Plus, she sometimes left her cash drawer unlocked, left money on the counter unattended, put her head down on the counter and constantly required help from co-workers to complete transactions.

Co-workers complained to management. Elam’s supervisor met with her twice to discuss her performance problems. She was given a warning and a message: Improve your performance or you’ll be terminated.

A week later she was late for a mandatory training session. Elam’s supervisor e-mailed HR to ask if anything could be done to terminate the “pregnant girl teller that I am having problems with.” After HR received proof of poor performance, it approved the termination.

Elam sued, citing the Pregnancy Discrimination Act. She claimed that the supervisor’s use of the phrase “pregnant girl teller” and another supervisor’s reference to her as “pregnant” were proof of pregnancy bias. The bank responded with a pregnant pause, pointing to all the documentation for poor performance. (Elam v. Regions Fin. Corp., 8th Cir., 4/19/10).

What happened next … and what lessons can be learned?

The court threw out the case and ruled in favor of the bank. It said, “Reference to protected status without reflecting bias is not direct evidence of discrimination.” The court noted that neither of the supervisors' comments, “indicated a negative attitude toward Elam's pregnancy.”

The court also made this point clear: “The Pregnancy Discrimination Act only requires equal treatment of pregnant employees, not preferential treatment. The bank was not required to overlook Elam's frequent absences from work, even if the absences were caused by her pregnancy, unless it overlooked the frequent absences of other employees.”

3 Lessons Learned … Without Going to Court

1. Accommodate generously. In finding for the employer, the court noted the employer went above and beyond to offer Elam accommodations to help her get through her pregnancy.

2. Don’t mumble. Never say anything derogatory out loud or under your breath about pregnancy. The court noted the employer’s silence. There was no record of any hostile comments and the court refused to “speculate” bias just because the word “pregnancy” was used.

3. Never surprise employees. The employer held performance management meetings with Elam. She knew that if her performance did not improve she would be fired. A bank teller cannot leave the cash drawer unattended and think she can keep her job—just because she is pregnant.

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