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by Mindy Chapman, Esq.

Aw 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 …

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

Elam’s doctor recommended the bank excuse her from work as necessary, which it did. But the situation didn’t improve. Elam continued to leave her station frequently, even in the middle of customer transactions. She sometimes left her cash drawer unlocked, left money on the counter unattended, put her head down on the counter and constantly required co-workers’ help to complete transactions.

Elam’s boss gave her a warning: Improve your performance or you’ll be terminated.

A week later, Elam was late for a training session. Her boss e-mailed HR to ask whether anything could be done to terminate the “pregnant girl teller that I am having problems with.” HR received her performance paperwork and approved the termination.

Elam sued, citing the Pregnancy Discrimination Act. She claimed the boss’s use of the phrase “pregnant girl teller” and another supervisor’s reference to her as “pregnant” were proof of pregnancy bias.

The verdict: The court threw out Elam’s case, saying, “Reference to protected status without reflecting bias is not direct evidence of discrimination.” The court said 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.” (Elam v. Regions Fin. Corp., 8th Cir.)

3 lessons learned … without going to court

1. Accommodate generously. The court noted that the bank went above and beyond to offer Elam accommodations to help her.

2. Don’t mumble. Never say anything derogatory about pregnancy. The court noted the employer’s silence and it refused to “speculate” bias just because the word “pregnancy” was used.

3. Never surprise employees. The performance meetings held with Elam made clear that she’d be fired if her performance did not improve.

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Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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