PREGNANCY CASE AND A RECENT TRANSGENDER STATUS TREND

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By:  Claudia D. Orr

 

Let’s start with an August 4th half million dollar verdict against Chipotle Mexican Grill, Inc. and learn from its mistakes how not to treat a pregnant employee.  The case was brought in the federal District Court for the District of Columbia. In it, Doris Hernandez alleged that her supervisor began to carefully scrutinize her work after she announced she was pregnant.

Hernandez testified that, after announcing her pregnancy, the supervisor implemented a new policy requiring employees to alert a coworker if they need to leave their work station to use the restroom or get a drink.  Being pregnant, Hernandez had to do this fairly frequently and she found it humiliating. Hernandez claimed the last straw came when she was not allowed to leave early for a doctor’s appointment although, prior to announcing her pregnancy, this had never been an issue. During the four-day trial the Chipotle supervisor denied the allegations. Apparently the jury didn’t believe him.

Remember, when an employee announces she is pregnant, congratulate her and say “let us know if you need anything.”  Then don’t act paternalistic or assume she is incapable of doing aspects of her job. This is between her and her physician. Also, make sure you don’t start treating her differently, not only as compared to other non-pregnant employees (including when it comes to light duty requests), but also different from how you treated her in the past.

The second tidbit for today is an emerging trend spotted by an Equal Employment Opportunity Commission district director. A BNA article reports that, at a recent conference, Director Daniels indicated he is starting seeing claimants who assert discrimination charges based on transgender status also assert charges of disability discrimination under the Americans with Disabilities Act (“ADA”). The director stated that his office is allowing the claims, although the EEOC has not taken a position on the issue.

What is interesting is that, as originally passed in 1990, and post-2008 amendments,  the ADA specifically excludes from within the definition of disability: homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders (not resulting from physical impairments) or other sexual disorders, compulsive gambling, kleptomania, pyromania or psychoactive substance use disorders resulting from current illegal use of drugs.  42 USC 12211. 

The director indicated that this is a hotly debated issue in the LGBT community and that “some medical experts have said that ‘gender is not binary, but part of a continuum, and people can identify at various places on the scale. Maybe the law is struggling to catch up with the medical community.’”  BNA, Vol 47, No 6.  But the law seems pretty clear to me. Transgender status is not a disability under the ADA, but is expressly excluded, and such claims should not be entertained by the EEOC.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For more information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2016.