Reprinted from the December 1, 2006 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.

YOU BE THE JUDGE
Whose Best Interests Are You Looking Out For?

In this feature, see how well your knowledge of the twists and turns in employment law measures up by judging an employer's fate in a common workplace conundrum.

PHYSICAL — AND LEGAL — SAFETY

“Congratulations!” restaurant manager Horatio Oderro said when Ameera Sorjan announced she was pregnant.

“I have five months to prepare for impending motherhood,” the waitress said with a grin.

“Well, you’d better take it easy,” Oderro responded. “Waitressing is hard work. I don’t want you to do anything that might wind up hurting you or your baby. So make sure you ask someone to help you carry heavy things.”

“You bet, Horatio,” Sorjan replied immediately.

Oderro didn’t want to take his chances that she might sue if she had a miscarriage as a result of lifting something heavy at the restaurant. So he communicated to the rest of the staff that he had told Sorjan not to do any heavy lifting and that they were to help her with that task. All of the workers were agreeable. In fact, a few weeks later, several employees informed him that Sorjan was not following his directive and was picking up big boxes of canned food and other items without asking for help.

The manager was not happy. He wanted to talk to Sorjan ASAP.

BEARING A BURDEN

When Oderro went to find the waitress, he spied her carrying a tray laden with dishes. He rushed over to help her. After they finished serving the table of five together, he pulled her aside to speak to her in private.

“Ameera, haven’t I told you to get someone to help you to lift heavy things?”

“Yeah.”

“Then what were you doing carrying that big tray by yourself?” Oderro demanded.

“It wasn’t too bad, and everyone was busy,” Sorjan explained.

“I told you, I don’t want you to hurt yourself,” Oderro repeated. “I thought you understood that I didn’t want you doing heavy lifting.”

“I heard you the first time,” Sorjan snapped. “But I can handle it!”

Shortly after, Oderro fired Sorjan. She filed a pregnancy discrimination lawsuit. The manager argued in court that he had a right to fire the waitress for her bad attitude and for failing to follow his direct order.

Does Sorjan have a valid discrimination claim?

THE ENVELOPE PLEASE

Ameera Sorjan has a great chance of winning her case. Horatio Oderro’s concern that she might hurt herself is the type of attitude that the U.S. Supreme Court prohibited in a 1991 ruling. In that landmark case, the High Court deemed a company’s policy of excluding those who were pregnant or capable of becoming pregnant from jobs that would expose them to lead was a violation of the Pregnancy Discrimination Act.
An employer may not discriminate against a woman because of her pregnancy or capacity to get pregnant unless it prevents her from performing her job duties. Having a benign motive (i.e., to protect the employee and fetus) does not render the action unbiased. Thus, Oderro’s attempt to protect Sorjan is likely illegal.

LESSON TO BE LEARNED

Unless an employee poses a direct safety threat to herself or other employees, it is the employee’s decision whether to perform a job duty or not. The most you can do is warn the employee of the potential hazards of the job, and, as Oderro did, provide options for avoiding those hazards. Otherwise, you can’t force a pregnant employee to stop performing a task due to your fear of harm to the unborn child.

Lesson not to learn: Stifling all expressions of concern over an employee’s well-being. Suggesting to a pregnant employee that she get help for heavy lifting is one thing; firing her for failing to do so is another.

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