Issue: Managers who make assumptions about employees' abilities to perform the job during and after pregnancy.
Risk: A manager's offhand remark can, by itself, be held up as proof of discrimination in court.
Action: Don't assume a pregnant employee is unable to work; ask questions. Use the following case to remind managers.
Too often, managers look down the road and make broad assumptions about an employee's or applicant's ability to do a job before testing, or even talking to, the person. But, as the following cases show, such broad-based assumptions can kill you in court.
That's why you should remind managers never to base employment decisions on how they believe employees would act based on their gender, race, religion or disability. Focus solely on the performance itself. Even stray remarks can be viewed as stereotyping.
Case 1. An Old Navy manager won a $500,000 jury award in her(PDA) lawsuit. The court said that when Old Navy discovered the employee's baby was due during the busy holiday season, it pushed her out the door without discussing whether she'd be able to fulfill the job's requirements. (Laxton v. Gap Inc., No. 02-40406, 7th Cir.)
Case 2. A school psychologist sued for gender discrimination, claiming the school denied her tenure because it presumed she couldn't devote time to her job after having a second child. Her proof: Supervisors asked her when she planned to have another child, and made comments such as, "if I was a young mother, I couldn't continue my commitment to the workplace."
A federal appeals court sided with her, saying that gender stereotyping is, in itself, job discrimination. The ruling shows that merely using stereotypes about the diligence of working mothers can be enough proof for a female employee to build a discrimination claim. (Back v. Hastings on Hudson School District, No. 03-7058, 2nd Cir., 2004)
Free E-visory report: For more advice on dealing with pregnant employees, access our E-visory report, Pregnant Employees: Answers to Your 20 Toughest Legal Questions, at www.hrspecialist.net/extra.