Reprinted from the July 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Maternity Leave: Fertile Ground For A Lawsuit

Providing a pregnant employee with maternity leave isn’t enough to stave off a legal claim if you give her a hard time before and after her absence.

NOT-SO-FOND FAREWELL
“Here’s a written request for maternity leave,” said accountant Jane Dosher, as she handed it to the general manager. “You haven’t responded to my multiple verbal requests.”

“All right,” Peter McManus replied, as he absently took the sheet of paper.

“I still plan on working during my leave,” Dosher added, in the hopes of sparking his interest in planning her leave. “I’m proposing to take four weeks off after the baby is born, but I’ll still do payroll every other week. After that, I’ll work maybe 20-25 hours per week until I return full-time.”

McManus didn’t take the bait, brushing Dosher off again. A month later, she tried again. “Peter, can we talk? Before you know it, the baby will be here.”

“You won’t lose your medical coverage while on leave,” the GM replied.

“What about time off?” she asked. “I know you’ve never had a pregnant employee before, but Terrence and Sean took leave when they got sick.”

“Apples and oranges, Jane,” said McManus. “Maternity and medical leave are different. Terrence and Sean couldn’t plan for their illnesses.”

It wasn’t until two weeks before her due date, when Dosher’s doctor ordered her to stop working for medical reasons, that McManus finally settled on the terms of the employee’s leave.

“We’ll pay your full salary for a maximum of six weeks. If you continue your leave after that, you can use your vacation and personal time.”

“Ok,” Dosher reluctantly accepted. She wasn’t 100% happy because she felt that she should have received more than six weeks. But she was glad that the issue had finally been resolved because it had been causing her a lot of stress in the meantime.

UNWELCOME BACK
On the day Dosher returned, McManus informed her that she needed to present a doctor’s note approving her return. It took her most of the day to get her computer reactivated and then the GM called her into a meeting. Gist: McManus was not happy with her performance. The discussion culminated with Dosher having one day to decide among the following options: remain employed, but her job responsibilities would likely decrease; leave with a severance package of four weeks of pay, plus medical coverage; or remain for 90 days while she looked for another job.

Dosher was livid. “I am prepared to work. I am shocked that I do not have a position. If I stay, will I be demoted?”

“Probably,” was McManus’s answer.

Finding the demotion unacceptable, Dosher chose to resign.

A BOUNCING BABY LAWSUIT
Dosher accused her employer of constructive discharge and pregnancy discrimination, pointing to a list of McManus’s actions that were intended to “force” her to quit.

• The GM made the process of obtaining maternity leave exceedingly difficult, which led to a lot of stress for the employee. He also indicated that maternity leave ought to be treated differently from other forms of medical leave.
  
  
• He acted as if he neither expected nor wanted her to return. For example, he failed to inform her that she needed a doctor’s note to return until her first day back, and he failed to reactivate her computer in anticipation of her return.
  
  
• He made it clear that she should consider resigning because she would otherwise be demoted. While a threat of demotion alone generally does not constitute constructive discharge, coupled with the other factors, it may. Case goes on.

CHANGE YOUR DELIVERY METHOD
In general, when an employee approaches you with a request for maternity leave, you should follow your company’s written policy. In this case, though, there was no policy or past precedent to be followed.

McManus was wrong not to take a cue from male employees’ previous medical leaves of absence. Pregnant employees do not need to be granted special treatment, but they do need to be treated equally with similarly-situated non-pregnant workers.

Making a pregnant employee’s work life difficult when she requests maternity leave and when she returns can set the stage for a legal showdown.

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