Connecticut Law May Force Employer to Transfer Pregnant Employee


Connecticut Law May Force Employer to Transfer Pregnant Employee

Ms. Lora Wagner -- see belowSo, in yesterday’s post, I alerted you to a portion of the state’s pregnancy discrimination law that you may not have been aware of, namely Conn. Gen. Stat. Sec. 46a-60(a)(7)(E).  If you haven’t read it yet, I’d suggest you do so for background for today’s post.

But after yesterday’s post, you may be wondering, is this a theoretical issue? In other words, have their been any lawsuits that employers should perk up their ears to?

As it turns out, yes.

One such case (Fenn Mfg. v. CHRO) began in 1983, when an pregnant employee complained to the CHRO that her employer, Fenn Manufacturing, had violated her rights under Section 46a-60(a)(7)(E) by refusing to permit her to work outside her normal work area whenever a co-worker at a nearby work station spray painted aircraft housings with an aerosolized paint primer containing aromatic hydrocarbons. Claiming that she had suffered ill effects when the primer was first used in her area, and that her doctor had later instructed her to avoid all exposure to aerosols and hydrocarbons during pregnancy, the pregnant employee insisted that she had come “reasonably[to] believe[ ] that continued employment in [her current]position m[ight] cause injury to [herself] or [her] fetus.‘

On that basis she contended that upon informing Fenn in writing of her belief and of the basis therefor, she became entitled under Section 46a-60(a)(7)(E) to have Fenn ‘make areasonable effort to transfer [her] to any suitable temporary position which may [then have] be [en] available‘ for her.

Claiming that at least one such ‘suitable temporary position‘was indeed ‘available‘ for her — that being a modified version of her existing position in which, during the first part of her pregnancy, Fenn had admittedly allowed her to work outside her normal work area during spray painting — the employee argued that Fenn had violated Section 46a-60(a)(7)(E) by refusing to allow her to work in that or some other suitable temporary position until the birth of her baby. As a result of Fenn’s refusal to make this accommodation, she argued, it should be required to compensate her for the wages she lost and the emotional distress she suffered when, as a result of that refusal, she was forced to leave her job to protect the health of her unborn child.

The CHRO sided with the pregnant employee and Fenn appealed. The case went all the way to the Connecticut Supreme Court on the issue of emotional distress damages, but as to the underlying discrimination claim, it was upheld without comment.  Indeed, it’s the lower court’s decision that is instructive.

The court addressed what “reasonable belief” in injury means.

The text of Section 46a-60(a)(7)(E) gives much useful guidance as to what the legislature intended when it conditioned the availability of the statute’s transfer remedy on a pregnant employee’s “reasonabl[e] belie[f]” that continued employment in her current position may cause injury to herself or her fetus. Of special note in this regard are three distinct features of the statute’s triggering mechanism.

The first of these is the use of the term “belief” to describe the measure of conviction which the employee must have as to the existence of a workplace danger before she can invoke the statute’s protections. A “belief” that one faces a particular danger is clearly different from “knowledge” that such a danger exists. Whereas “knowledge,” in common parlance, is a subjective state of certitude as to a fact that is demonstrably true, “belief” is but a firm commitment to or acceptance of the truth of a given proposition, with or without the corresponding ability to prove by any standard that it is true. Though a person cannot “know” what he doubts or cannot prove, he can readily “believe” it, notwithstanding his uncertainties. Therefore, by expressly providing that an employer’s obligation to accommodate an employee under this statute is triggered by the employee’s reasonable “belief” that continued employment in her current position may cause injury to herself or her fetus, the legislature must be found to have intended that pregnant employees should be entitled the statute’s protections even when they cannot prove, by objective, scientific evidence or otherwise, that the dangers they seek to avoid are real and substantial.

In other words, this is a much lower standard for a pregnant employee to meet.

What’s interesting, though is that in a case earlier this year in federal court, the court looked not to the reasonable belief but to the doctor’s restrictions as the basis of the claim. In this recent case, a pregnant grocery store employee who suffered from severe back pain the last month of her pregnancy was terminated and allegedly refused a temporary position or leave of absence, could state a claim for pregnancy discrimination under state law.

In doing so, the court concluded that exceeding a doctor’s medical restriction on lifting could “cause injury to the employee or fetus”. It doesn’t address the “reasonable belief” notion — concluding basically that the science of breaking a doctor’s note is sufficient to establish this element.

In denying the employer’s motion for summary judgment on the transfer issue, the court stated the following:

Defendant contends that the failure to transfer claim fails because “there is no evidence suggesting that either Stop& Shop or Plaintiff believed that her continued employment in her existing positions—floral clerk and cashier—might cause injury to Plaintiff or her fetus.”  However, this argument is contradicted by the premise of Defendant’s defense to this case, which is that due to the 15–pound lifting restriction Plaintiff “was not qualified for the floral clerk or cashier positions at that time.” Clearly, if Plaintiff’s job required her to exceed a medically-imposed lifting restriction, then continuing in such a position could “cause injury to the employee or fetus.” Conn. Gen.Stat.§ 46a–60(a)(7)(E).

Second, Defendant contends that, at the time of her termination, there was not a suitable position to which Plaintiff could have been transferred because she did not believe that she could have continued working. However, at oral argument, Plaintiff clarified that she doesnot claim a failure to transfer on the date of her termination when she instead sought pregnancy leave, but rather claims a failure to transfer starting on June 5, 2012, when the weight restriction was imposed. Plaintiff acknowledges that she never specifically requested a transfer to another position, but she contends that after she advised [another employee] of her lifting restriction, [that supervisor] nevertheless demanded on an almost daily basis that Plaintiff perform tasks requiring her to exceed this lifting restriction.  Therefore, a jury could reasonably conclude that by keeping Plaintiff in an assignment with a written job description that required her to lift in excess of her medical restriction and demanding that Plaintiff in fact exceed her lifting restriction, she was effectively denied a transfer.

What’s all this mean for employers?

First, when an employee discloses the pregnancy, make sure to keep an open door to possibilities such as a transfer or leave of absence. Even if FMLA doesn’t apply, there is likely a separate obligation under state law.

And second, understand that the employee need only have a “reasonable belief” in the possibility of injury to herself or fetus.  Even if you disagree with the risk, you may have an obligation to transfer the employee to a suitable temporary position in some instances.

And third, if you’re unfamiliar with these issues, please do consider consulting with an attorney on this. It’s better to walk through the issue with that attorney, then have to hire that attorney after the fact.

(Editor’s Note: The photo is Mrs. Lora Wagner, a married New York City teacher who protested the lack of maternity leave and worked to change the New York City Board of Education policy of suspension of teachers who became mothers. (Source: Flickr Commons project and Patricia Carter, “Becoming the ‘New Women’: the Equal Rights Campaigns of New York City Schoolteachers, 1900-1920,” in Richard Altenbaugh, ed., The Teacher’s Voice: A Social History of Teaching in Twentieth-Century America, p. 54))

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