Some employees try to fabricate a lawsuit by resigning and then alleging that some form of discrimination made their working conditions so intolerable that they had no choice but to quit. The name of this claim: constructive discharge. Fortunately for employers, it takes more than a few isolated comments to create intolerable conditions. And, as the following case shows, the fear that working conditions will become intolerable isn’t enough to justify quitting before things get bad at work.
Maternity Leave Laws
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Q. Our pay stubs currently list employees’ available vacation, sick and other leave hours. Our new software allows employees to log in and check that balance anytime. Can we eliminate that information from the pay stubs?
Employees who run out of FMLA leave and are fired under a policy requiring mandatory dismissal for excessive absences may be invited to apply for other open positions when they recover enough to work. Be careful how you handle those reapplications, especially if one of the terminated employees was off because she was pregnant and ran out of leave before being able to return.
Some comments simply aren’t appropriate in the workplace—especially when the person weighing in is a supervisor or manager. Most bosses understand they can’t use ethnic or racial slurs, but many don’t understand that the same common sense applies to discussing family planning.
The Pregnancy Discrimination Act (PDA) protects employees from discrimination based on pregnancy and related medical conditions. It doesn’t, however, let new mothers take off work when child care arrangements fall through, as the following case shows.
HR professionals must make sure that supervisors hear this message loud and clear: Don’t make any assumptions about what a pregnant woman can or cannot do. Voicing such presumptions and taking action based on them virtually guarantees a pregnancy discrimination lawsuit.
An Ohio appeals court has ruled that an employee who quits to have a child and isn’t otherwise eligible for maternity leave isn’t entitled to unemployment.
Three-quarters of the women employees who got promoted last year at alcoholic beverage maker Diageo had flexible work schedules, including job sharing, flextime, compressed hours and telework. Among all female workers at the company, half reduced their hours at some point during the year, and 60% used flextime.
Attorneys seem intent on finding some form of discrimination in every adverse employment decision—and courts seem increasingly inclined to go along. Consider this recent case, in which a pregnant black employee won the right to a jury trial on race and national-origin discrimination based on the allegation that a white pregnant employee was treated better.
Supervisors sometimes get angry when employees accuse them of some form of discrimination. But if that anger spills over into increased scrutiny, more job tasks and other unpleasant conditions for the employees who complained, count on even more legal trouble. That’s why HR must do more than simply warn supervisors against retaliation.