A company has a lab where certain chemicals, potentially dangerous to a fetus, are used for research purposes, and a manufacturing facility where workers may be exposed to lead. For the first time, a worker located in one these areas reports to human resources that she is pregnant, and that she wants to continue working in her job until she is ready to give birth to her baby. What may the company do, and what should it do?

First, it is well settled that the company may not transfer the employee against her wishes to another job or force her to take a leave of absence. This rule was stated clearly by the U.S. Supreme Court in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Johnson Controls Inc. Johnson Controls had implemented a policy, after eight employees became pregnant, barring female workers of child-bearing age from working in a job that involved exposure to lead.

The court found that decisions about "the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire those parents." The company argued that the court should "allow fetal-protection policies that mandate particular standards for pregnant or fertile women." The court held that "[w]e decline to do so" and that "women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job." Finally, the court stated that under the Pregnancy Discrimination Act, the "decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself."

Notwithstanding the Supreme Court's clear statement of the rule, employers, particularly those who confront this issue for the first time and who are honestly motivated by a desire to do the "right thing," have found themselves hauled into court for "paternalistic" decisions implemented for the purpose of protecting a fetus. For example, in Peralta v. Chromium Plating & Polishing Corp., an employee became pregnant, suffered a miscarriage and then filed a workers' compensation claim alleging that strenuous lifting contributed to the miscarriage. Less than one year after the miscarriage, the employee became pregnant again.

The company responded by refusing to allow her to continue to work until she provided a letter from a doctor stating that her work would not endanger either herself or her fetus. The court found that the law "mandates that the decision to work while pregnant be left to each individual woman to make for herself" and that an "employer cannot usurp this choice, even if it is motivated by a benevolent desire to help a woman or her unborn fetus."

As the Peralta case indicates, another motivation for a decision of an employer to remove a pregnant employee from a potentially hazardous worksite is the fear of liability if the fetus is harmed as a result of the exposure to a hazard. The employer in Peralta was likely as concerned about the possibility of another workers' compensation proceeding being brought against it, as it was about the health of its employee and her unborn child.

This issue — the potential liability in tort of an employer who allows a pregnant employee to continue working in proximity to a hazard in the workplace — was acknowledged by the Supreme Court in the Johnson Controls case. The court stated that: "If, under general tort principles, Title VII bans sex-specific fetal protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best." In other words, the Supreme Court suggested that an employer could avoid tort liability to the pregnant employee and her unborn child by fully disclosing to the pregnant employee the risks of continuing to work while also avoiding negligence.

This suggestion from the court may be somewhat useful, but as the dissent in that case noted, the statement is merely dictum and is not binding as a matter of law on the state courts, which will ultimately rule on the tort issue under state law. The dissent in Johnson Controls noted that the "possibility of tort liability is not hypothetical; every state currently allows children born alive to recover in tort for prenatal injuries caused by third parties" and arguing that the majority's "speculation will be small comfort to employers."

In other words, while the Supreme Court decision settles as a matter of federal discrimination law the issue of whether an employer can force a pregnant employee out of a job that involves exposure to hazards — it cannot — the decision does not settle as a matter of state tort law the liability of an employer who is alleged to have "negligently" allowed its pregnant employee to continue working around hazardous substances during the pregnancy. In other words, as one leading commentator has stated, it "is not yet clear whether state courts in tort actions will be guided by the majority's dictum that no tort liability should exist [to either mother or unborn child] where employers make full disclosure to women in advance."

State Courts

As to whether state courts have accepted the Johnson Controls suggestion that state tort law liability would be minimized by providing full disclosures to employees who insist on continuing to work in a hazardous situation, there appear to be only a few state court decisions. While some of these decisions indicated that they agreed in general with the Supreme Court's statement, they did not need to address the adequacy of an employer's disclosures to a pregnant employee, because no such disclosures had been given.

Now assume the same hypothetical posited in the first paragraph — a pregnant employee working in a potentially hazardous worksite — but this time the employee, instead of demanding that she remain in her position, instead requests a transfer for the purpose of ensuring the safety of her fetus. Again, what may the company do, and what should it do?

In terms of what the company "may do," as a matter of federal employment law, there is meaningful case law that the employer does not have a legal duty to make the transfer. For example, in Armstrong v. Flowers, a pregnant nurse was terminated by her employer for refusing to treat an HIV-positive patient because of the nurse's concerns about the health of her fetus. The nurse challenged the hospital's policy of requiring nurses to treat without exception patients to whom they are assigned and argued that the policy unlawfully forced her to choose between her job and the health of her fetus.

The federal appellate court disagreed, concluding that employers need not ease this decision-making process by making alternative work available to pregnant women, even if they had fetal health concerns. Specifically, it noted that: "The right to make this decision rests with the woman. She may choose to continue working, to seek a work situation with less stringent requirements, or to leave the workforce. In some cases, these alternatives may, indeed, present a difficult choice. But it is a choice that each woman must make."

Similarly, in Asad v. Cont'l Airlines Inc. supra, the court summarized that "reported cases address the situation in which a pregnant women seeks a transfer to protect the health of her fetus, that request is denied, and she quits or is terminated and then sues for discrimination under Title VII. The few courts that have explicitly addressed this issue have held that the women have no recourse under Title VII." Accordingly, while there is not a great deal of case law, what case-law there is makes a persuasive argument that an employer has no duty under employment law principles to grant a transfer request made by a pregnant employee (assuming of course that the employer is not treating its pregnant employees worse than it treats non-pregnant employees who request a transfer).

More to the Inquiry

However, once again, examining the issue of responses to a request for a transfer, solely from the perspective of an employer's rights under federal discrimination law, does not end the inquiry. Again, the issue of tort law is relevant. In particular, in Asad, a case of apparent first impression, the pregnant employee performed work near inbound and outbound turboprop aircraft and her duties included directing aircraft, checking their wheels, setting up cones to delineate safety zones, plugging aircraft into ground power units, and loading and unloading baggage. Concerned about the effect of jet fumes on her pregnancy, the employee twice requested a transfer, which her employer twice refused. The employee continued working because she could not afford to quit or take an unpaid leave of absence.

The employee gave birth to a child with a brain injury and cerebral palsy. The child then sued the mother's employer in tort for his injuries. The court found that the child could proceed with his claim that the employer negligently failed to transfer his mother. The court first found that the employer could be found to have a duty of care under state law to the child that it breached by refusing to transfer his mother. The court then found that this state law tort duty was not pre-empted by the federal discrimination law. Because the state law tort duty would not require the employer to engage in acts proscribed by Title VII, preemption was not warranted.

These decisions as a whole suggest the following courses of action for employers: Where the pregnant employee insists on continuing to work in a potentially hazardous environment, the employer should ensure that complete disclosure is made to the employee about the nature of the hazards and that the employee fully understands the risks, while taking reasonable measures to mitigate the risk factors; and where the pregnant employee requests a transfer from the potentially hazardous environment to a new job, the employer should, where possible, accommodate the employee's request and, if no such accommodation is possible, should, at a minimum, grant an unpaid leave of absence. The Legal Intelligencer