Zoe, a store associate, typically spent her shift lifting and pushing heavy boxes weighing 30 pounds or more, climbing up and down ladders, and stretching to reach shelves. After she announced her pregnancy, her manager, Terrance, did not want her to take any risks and reassigned her to work solely behind the cash register. The new assignment allows Zoe to sit while working a shorter shift and prevents her from doing any lifting, pushing, stretching, or climbing. Zoe complained that making the change because she’s pregnant — without her asking for a change — was an adverse action. Was it?
Yes. An employer violates the Pregnancy Discrimination Act (PDA) if it takes an adverse action against a pregnant employee based on concerns about her health and safety. Although an employer may require that a pregnant worker be able to perform the duties of her job, adverse employment actions (including those related to hiring, assignments, or promotion) that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs are unlawful. This is true even when an employer believes it is acting in an employee's best interest. In this case, even though Terrance believed he was acting in Zoe’s best interest when he reassigned her to a less demanding job, the reassignment was an adverse action that violated the PDA.
An employer may only reassign a pregnant worker based on concerns about her health or the health of her fetus if it can establish that non-pregnancy or non-fertility is a bona fide occupational qualification (BFOQ). There are very few, if any, situations where an employer is able to establish this defense.
Source: EEOC Guidance: Questions and Answers about the Enforcement Guidance on Pregnancy Discrimination and Related Issues, reported in Employment Practices Guide, ¶5411, https://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.