Pregnancy Retaliation

[ConcernedOH]

My question involves labor and employment law for the state of: Ohio

I am in a supervisory role for my company, and I am male. Last year, one of my female staff came to me and informed me that she is pregnant, but she asked me to not tell anyone, which I get, early on in pregnancy. At the time, she reported that she was having severe morning sickness, and although the team is on flex-time, she just wanted me to know that instead of coming into work at her usual work time, she wanted to come in later in the morning after she started feeling better. She is an excellent performer and as such I had no issues with this especially given we provide remote access to employees to work from home. It has always been my policy on my team with flextime and remoting that I'm relatively indifferent to time of day, just that everyone pulls their fair share.

However, my boss came to me shortly after and complained about her "absenteeism". Having no other option, I informed him that she was pregnant, and had asked me to keep it confidential which I had and that I had approved of her work schedule. This didn't seem to be a problem. However, we were in the middle of a major project, and my duties were pretty heavy so a few weeks later when he came back to me and requested that he temporarily assume oversight of the duties that included her team. I didn't think anything of it, in fact, I appreciated the help.

After this some concerned employees came to me and reported that my boss was treating this employee badly, disrespecting her, and that she had gone to HR and complained. I went to my boss to find out what was going on, and he confirmed that a complaint occurred, but that he thought it was retaliatory because she didn't like him or trust him, but that the "situation had been handled". So I let it drop.

Months later, the project was getting close to wrapping up, and my boss started talking to me about what he was going "to do" with the employee in question. Even though she was reporting to him, she still worked closely with employees reporting to me and with me, and every one of them had reported to me that they love working with her, she does a good job, etc. My experiences have always been similar. However my boss admitted to me that he was looking to terminate her or transfer her out of the department. I was astonished and I made it clear to him that I opposed any such action based on my observations. Ever since doing this, my boss has started treating me with more and more disrespect and telling me and others that we're "not aligned" like we used to be.

After the project was completed, we had public celebration. At the celebration my boss made a speech and gave out some achievement awards to people on his team involved in the project... except for her. I went to my boss and told him that I felt it was very disrespectful and in poor taste to embarrass her in front of her spouse and peers. I had several employees come and voice concerns about this as well, so his message was received loud and clear. She came to me later that week near tears and begged me to try to get her back into my reporting chain and was thinking about quitting after the baby comes, additionally she told me the following things:

1. When she complained to HR, the meeting between her and the boss turned into a "performance concern". He had allegedly made statements like "she didn't look pregnant", and that she was "allowing her pregnancy to interfere with the project" and "letting her coworkers down".

2. During the project, he diminished her authority in her role and gave some of her duties to other staff.

3. His first act as her new boss was to rescind her flex-time, because she had to "be more available". When she told him I had approved of her schedule and the reason, he allegedly told her there was no documentation of that and so he wasn't going to honor it. (For the record, we're on flex time, no such formal documentation exists or has ever been required)

4. The hours that he forced her to hold started earlier in the day than previously. She has a small child at home who she has to get to school. She tried to negotiate back to her old schedule but he refused, as such, she was forced to pay for baby-sitting in the morning to get her daughter to school and get to work on time.

I immediately went back to HR and voiced my concerns and other employees have shared that they have also voiced concerns with HR, however nothing has been done. Since this report, my boss's behavior towards me has become increasingly hostile to the point where I have documentation of aggressive messages and even recorded evidence of him speaking poorly about me in front of other employees. I have never had any performance concerns brought to me, and neither had this female staffer until she became pregnant. I am considering encouraging her to go to the EEOC and file a complaint given what she has told me... but I'm torn between my duty and loyalty to the company and my resentment over how she (and not me) are being treated.

Advice welcome.

[jk]

4. The hours that he forced her to hold started earlier in the day than previously. She has a small child at home who she has to get to school. She tried to negotiate back to her old schedule but he refused, as such, she was forced to pay for baby-sitting in the morning to get her daughter to school and get to work on time.

give that one up right now. An employer does not have to cater to an employees schedule.

2. During the project, he diminished her authority in her role and gave some of her duties to other staff.

and? It was within his right, correct?

3. His first act as her new boss was to rescind her flex-time, because she had to "be more available". When she told him I had approved of her schedule and the reason, he allegedly told her there was no documentation of that and so he wasn't going to honor it. (For the record, we're on flex time, no such formal documentation exists or has ever been required)

if hers was the only flex time altered, it might be important.

I immediately went back to HR and voiced my concerns and other employees have shared that they have also voiced concerns with HR, however nothing has been done. Since this report, my boss's behavior towards me has become increasingly hostile to the point where I have documentation of aggressive messages and even recorded evidence of him speaking poorly about me in front of other employees. I have never had any performance concerns brought to me, and neither had this female staffer until she became pregnant. I am considering encouraging her to go to the EEOC and file a complaint given what she has told me... but I'm torn between my duty and loyalty to the company and my resentment over how she (and not me) are being treated.

You have no protections here so tread lightly. He can speak however he wishes to anybody he wishes, legally. If the company has a problem with it, it is between him and the company.

So far the only thing I can see that has any merit is the cancellation of the flex time. If that was the only issue, I would suggest there is no claim especially considering the importance you stress concerning this project. It could be easily explained as being necessary to deal with this extremely important project.

[ConcernedOH]

@jk

Yes, she is the only employee who had flex time removed during this project. The project was important, but it's a knowledge worker field, which is why we have the ability to work remote since being physically present is not necessary for successful work. With the inconvenient scheduling, the difference between the time he required her to be present and the time that would have been convenient was a mere half hour. I have a strong feeling that he was engaging in constructive termination.

For point 2, yes, it is within his right, but I think it supports the feeling that he was attempting to make her job miserable to force a resignation.

Lastly, yes, I am aware I have no legal protection against poor behavior, but the company does have an anti-harassment policy and I'm somewhat curious that if his negativity towards me is based on my reported concerns about her whether I would have any protection if I were called to testify on my observations.

Oh, with the hours I should also point out that her set schedule was earlier than any other person on the team, she was also the only one with a set schedule.

[jk]

Lastly, yes, I am aware I have no legal protection against poor behavior, but the company does have an anti-harassment policy and I'm somewhat curious that if his negativity towards me is based on my reported concerns about her whether I would have any protection if I were called to testify on my observations.

that is a company policy. Company policies are not generally enforceable through the courts.



I do see your points but basically, I do not believe it is provable this was due to her pregnancy. For all we know, it could be simply because he doesn't like her which makes it totally legal.

[Michael44]

Company policies are not generally enforceable through the courts.

Oh, what utter bullshit. There's stuff like Equal Employment Opportunity Commissioner v. Kohler Co., but consult a lawyer who deals in this area. "jk" has no idea what he is talking about, and absolute ignorance combined with utter confidence is downright dangerous.

[jk]

Oh, what utter bullshit. There's stuff like Equal Employment Opportunity Commissioner v. Kohler Co., but consult a lawyer who deals in this area. "jk" has no idea what he is talking about, and absolute ignorance combined with utter confidence is downright dangerous.

have you even read that decision Michael? Since it involved a retaliation action due to the the employee filing a discrimination claim with the EEOC, I do not see how it enforces your claim that a company policy (not a policy that is due to a legal mandate which would not be just a company) is enforceable by the courts.


btw, if you read that case, you would also see that Anheiser Busch won, which would be in contrast to your argument.

ConclusionA-B is entitled to summary judgment because the undisputed facts show that plaintiffs cannot meet their burden of showing pretext. While there may be a factual dispute about whether a decision maker was aware of Cooper's discrimination lawsuit at the time the decision was made to discharge him, A-B has presented undisputed evidence to establish a legitimate non-discriminatory reason for Cooper's discharge. Plaintiffs have not presented any evidence that could show this reason to be a pretext, and therefore, A-B is entitled to judgment as a matter of law.AccordinglyIT IS HEREBY ORDERED that defendant Anheuser-Busch, Inc.'s motion for summary judgment [#32] is granted.

so, please show me where a company policy (not a legal mandate) has been enforced by the courts.

[Mr. Knowitall]

I believe that mberlin is trying to address a different issue - the failure of an employer to follow its own anti-discrimination policies as potential evidence in a subsequent discrimination claim - as opposed to directly responding to the point you were making ("Company policies are not generally enforceable through the courts") which I took to reference circumstances where a legal cause of action has not yet arisen.

[Beth3]

I am considering encouraging her to go to the EEOC and file a complaint given what she has told me... but I'm torn between my duty and loyalty to the company and my resentment over how she (and not me) are being treated.

You're part of company management. It seriously is not your job to encourage employees to file complaints with a government agency. That said, I understand why you feel the way you do however you'd be hard pressed to find anyone who doesn't understand the basics of discrimination laws, particularly those regarding pregnancy, and their right to file a complaint with the EEOC. If this employee feels she has been discriminated against because of her pregnancy, I fully expect she knows what her rights are and what to do if she wishes to pursue those.

[ESteele]

OP, if your boss continues to take adverse action against you because you pointed out that some or all of his actions against this pregnant subordinate are questionable, then you may want to consult with a representative of the EEOC or FEPA or with an employment law attorney to weigh whether to commence a your own retaliation action.

With respect to informing the pregnant employee of her right to initiate discrimination and/or retaliation claims on her own behalf, you have to “make the call” based on the immediate circumstances and your own principles.