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Why Superstorm Sandy Requires Employers to Take a Pregnant Pause

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in Case In Point

Last week, Hurricane-turned-superstorm Sandy impacted thousands of employers and cut power to millions of homes. East Coast workplaces may experience another impact nine months from now, when pregnancy rates are expected to spike. Pregnancies rose after New York City’s famous blackout in November 1965, and the same is expected on the East Coast after Hurricane Sandy. This serves as another incentive to brush up on the risks of pregnancy discrimination.

Case in Point: In her first year on the job, Tasha Alexander, a nurse at a Cincinnati retirement community, was written up for poor performance based on repeatedly late arrivals. The discipline notice was removed from her file after a year, in accordance with company policy. She then received a glowing review from her boss.

About a month later, Alexander announced she was pregnant. A new supervisor took over around that same time and cited Alexander for giving a resident the wrong medication. Eventually, she was given a final written warning.

A few weeks later, Alexander called out sick—citing pregnancy-related illness—two hours before her 7:00 p.m. shift was to begin. Such short notice violated the company’s call-in policy, which required no less than four hours’ notice. Alexander was immediately fired.

She sued her employer for pregnancy discrimination under the Civil Rights Act of 1964, violating the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Her employer denied the claims, arguing that it told her she’d be fired if she violated another policy. And, that’s exactly what she did.

Decision: The court ruled in favor of Alexander and sent the case to a jury to decide. The dagger: The employer had never before enforced the “four-hour notice rule” against non-pregnant employees or, even ANY employees. Looks like the employer just gave birth to a big bouncing discrimination lawsuit. (Alexander v. Trilogy Health Servs. LLC, S.D. Ohio, 10/23/12).

3 Lessons Learned … Without Going to Court

1. Take a pregnant pause. If you have not been enforcing a policy in the workplace and then you decide to do so for the first time to a pregnant employee it will give your wallet stretch marks.

2. Time it. Like counting contractions, a court counts how much time lapses between being notified of an employee’s pregnancy and the employer’s acts of discipline. It’s not to say an employer cannot discipline a pregnant employee, but the discipline had better be legitimate, consistent and fair, as always. Do it to one, do it to all.

3. Take baby steps. In this case, the supervisor told Alexander not to come back to work anyway because she was already fired for violating the four-hour notice policy. Go slowly before terminating an employee who has special employment protections under local, state and federal laws.

ONLINE RESOURCES: Pregnancy and Maternity Leave: A Legal Guide and Sample Policy

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