A Case of Pregnancy Discrimination

Can an employer reassign an employee because her pregnancy might offend someone?

Issue: Christina, a Mexican-American, worked as a server waiting tables at a large chain restaurant (not the one pictured) until she was reassigned to a kitchen position when she was four months pregnant. Bill, one of Christina’s supervisors, told her he was moving her there because he thought customers’ appetites would be spoiled if they had their food brought to them by someone who was pregnant. He also told her that he thought Mexican families were too large and that it was not fair for Mexicans to come to the United States, “take over,” and use up tax dollars. Christina filed an EEOC charge complaining she was harassed and discriminated against because of her national origin and pregnancy. Is she right?

Answer: Yes. In this instance, an investigation showed that the supervisor’s decision to reassign Christina was based on her pregnancy, not her actual work performance. The investigation also showed that the supervisor regularly made comments in the workplace about Mexicans entering the country illegally and taking jobs from other people before directing such comments at Christina. Under these circumstances, the evidence showed that Christina was subjected to discrimination based on both her sex (pregnancy) and national origin.

Also note that, while federal EEO laws do not prohibit discrimination against caregivers per se, the EEOC has described circumstances where discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964. Employers may be liable if workers with caregiving responsibilities are subjected to offensive comments or other harassment because of race, sex (including pregnancy) or another protected characteristic, and the conduct is sufficiently severe or pervasive to create a hostile work environment. The same legal standards applicable to other forms of harassment prohibited by the EEO statutes also apply to unlawful harassment directed at caregivers or pregnant workers.

Source: EEOC Guidance: “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” reported in the CCH Employment Practices Guide, New Developments ¶5243.