Archive | April, 2014

Employers Cannot Discriminate Against Pregnant Employees Based on Concerns for the Safety and Health of the Baby


It has become apparent that pregnancy discrimination is of particular interest to the EEOC in that the EEOC has been pursuing an increased number of these cases. Recently, the EEOC filed suit against an employer which refused to permit a pregnant employee to return to work after needing a few days off work for premature labor due to a concern for the safety of the baby. The EEOC also pursued another case where a pregnant employee was fired due to concerns that the job duties would potentially harm the baby.  Both of these cases were recently settled by the employers for slightly less than $30,000.00 each.  These cases confirm, however, that adverse employment actions against pregnant employees based on a concern for the health and/or safety of the unborn child are not permissible and can be liability producing.

This also holds true in a prospective employment situation.  In another case, an employer refused to hire a qualified applicant after learning that the applicant was pregnant. The perspective employer had interviewed the applicant multiple times, gave her positive feedback and extended a job offer through the staffing company. Once the prospective employer learned of the applicant’s pregnancy, the prospective employer refused to hire the applicant and later hired a non-pregnant applicant instead. The EEOC filed suit against this employer as well. This case was recently settled for $90,000.00.

Accordingly, we remind employers that discrimination on the basis of pregnancy is not permissible even if it arises out of a concern for the safety and health of the unborn baby.

Wages and Confidentiality


Many employers require their employees to maintain the confidentiality of their wages and/or salary and try to prevent their employees from discussing their wages with other employees. However, the Fifth Circuit Court of Appeals in Flex Frac Logistics, LLC v. NLRB recently held that a non-union employer committed an unfair labor practice and violated the National Labor Relations Act (“NLRA”) by requiring its employees to sign an overly broad confidentiality policy which stated that confidential information included information related to “personnel information and documents”.  The Court held that this  policy could reasonably be interpreted to prohibit the discussion of employee wages which infringes upon the employees’ Section 7 rights under the NLRA. Accordingly, employers, even non-union employers, should review their current policies to ensure compliance with the NLRA in this regard.  We do note, however, that managers and supervisors are not protected by the NLRA and, therefore, this case would not apply to those individuals. We do caution employers, however, to ensure that any individuals who are designated as a manager and/or a supervisor are done so in compliance with the NLRA.