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Base light-duty policy on business necessity; enforce it consistently

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in Discrimination and Harassment,Firing,Human Resources,Maternity Leave Laws

Employers are very leery about firing pregnant employees, and rightly so. But don't let your lawsuit fears paralyze you from taking legal, appropriate actions.

In short, federal law requires that pregnant employees be treated the same as other employees on their ability or inability to work. Most pregnancy discrimination lawsuits crop up because pregnant employees are fired (or not hired) simply because of the organization's perception of their ability to perform the job's essential functions, not by evaluating whether the employee can truly do the work.

So if you have a policy that allows for light-duty positions due to injuries or disability, be sure to apply it to everyone universally. Treating pregnant employees according to established policy will help you avoid liability.

Recent case: After nursing assistant Jennifer Daugherty became pregnant, her doctor restricted her to light-duty assignments, including not lifting anything more than 75 pounds. But lifting patients was an essential function of her job at a long-term care facility. So the company fired Daugherty, citing its long-standing policy of giving light-duty assignments only to employees who suffer injuries on the job.

She sued, alleging a Pregnancy Discrimination Act (PDA) violation, but the court sided with the company. Its reasoning: The company's policy was clearly a justified "business necessity." Nursing assistants were responsible for lifting and transporting residents. If all employees injured off the job were offered light-duty assignments, the facility wouldn't be able to properly care for patients. (Daugherty v. Genesis Health Ventures of Salisbury Inc., No. 03-2103, Dist. Md., 2004)

Free E-visory report: For more advice, access our E-visory, Pregnant Employees: Answers to Your 20 Toughest Legal Questions, at www.you-and-the-law.com/extra.

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