Doris worked for the Chipotle restaurant chain. And she was pregnant. After she announced her pregnancy to her supervisor, Doris claimed her boss began monitoring her bathroom breaks (then berated her for taking too long), required her to “announce” her bathroom breaks to others, prohibited her from taking shift breaks, denied access to water, and eventually terminated her employment in front of other employees because she attended a prenatal doctor’s appointment.
I have no idea whether these facts are true, but a jury believed them. And earlier this month, it hammered Chipotle to the tune of $550,000, plus attorneys fees.
Chipotle’s bad day reminds me of another case just like it from this past year.
This one involved Anne. As the story goes, Anne happily announced to her boss that she was pregnant and expected his support and approval of her maternity leave. Instead, her supervisor expressed irritation that Anne would be on leave during the busiest part of the year. Days later, Anne’s work-from-home privileges were revoked, and her supervisor made her take paid time off to attend doctor’s appointments that had already been approved. Shortly following the revocation of her work-at-home rights, Anne had to leave work unexpectedly due to a family emergency, which she reported to the employer. However, her supervisor terminated her employment the following day, citing her failure to return to work. See Anne’s case here: Karanja v. BKB Data Systems
This is a problem.
Don’t get me wrong. I’m cynical about nearly any FMLA lawsuit, but these all can’t be untrue. Am I correct? Thankfully, employers are in an ideal position to do something about it.
So, what can we do?
- Dare we show some excitement for the mother-to-be? This is a life-changing event for your employee. Indeed, one of the sure joys in life. Affirm this! At the same time, recognize that mom-to-be is very worried about your reaction to her pregnancy and whether she’ll still have a job upon her return. So, resist any foolish urge to admonish her for taking leave at one of the busiest times of the year. Duh!
- The Timing of a Termination Decision is Important no matter what you think the courts say. Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim. This argument isn’t as persuasive to the courts as it once was, as the courts are allowing far more tenuously timed decisions to support employee claims.
- When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up! Here, Chipotle argued that it terminated Doris because she left work without permission (to attend a prenatal visit). Employers, let this case be a warning to you — before terminating an employee who has requested leave, it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision. Going into the decision without documentation is a recipe for disaster. And terminating her because she’s attending a prenatal visit is setting yourself up for failure.
- Be mindful of state pregnancy accommodation laws and EEOC Guidance regarding pregnancy discrimination. With a growing number of pregnancy accommodation laws at the state level, employers face even more scrutiny when pregnancy discrimination claims arise. These local laws now shift the burden of proof from the employee, who previously had to prove she was entitled to an accommodation, to the employer, who now has to prove that it would be an undue burden. Also keep in mind the EEOC’s Guidance on Pregnancy Discrimination, which makes clear the obligation to provide workplace accommodations to pregnant employees. So, if we have not taken seriously the reasonable accommodation requests of expectant moms, including the need for leave from the job to attend to pregnancy-related issues, we must do so now.
- Keep in Mind: Moms and Dads make for sympathetic plaintiffs. If you frankly could take or leave child bearers and expectant parents, and money is your bottom line, it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues. Just ask Chipotle.