On Feb. 25, 2015, the U.S. Supreme Court will hear arguments in EEOC v. Abercrombie & Fitch Stores, Inc. The case is about religious accommodation, but it has important implications for disabled workers, too, and for some pregnant women.
This op-ed by TELG managing principal R. Scott Oswald was published by Detroit News on February 19, 2015. The full article is available at Detroit News.
Supreme Court could legalize employment discrimination
Imagine you’re a warehouse manager. You need a new worker and are choosing between three finalists. All are equally qualified, and all say they can meet the job requirements. But two of them, it turns out, are pregnant.
• Danielle is barely five months along, and showing only a little.
• At seven months Lisa is quite visibly pregnant.
• Kim, the third candidate, is not pregnant.
Although the job involves lifting and ladder-climbing, you’ve previously offered special gear for pregnant and temporarily disabled workers. Extra leave, too, if needed. It’s expensive, but not an undue hardship.
During interviews neither Danielle nor Lisa mentions being pregnant. You don’t ask. But looking at Lisa’s belly, you assume that she’s pregnant and will need accommodation. You’re in no mood for the extra cost, so you cross her off your list. Meanwhile you don’t realize Danielle is pregnant, so you offer her the job.
Have you discriminated illegally against Lisa? Probably. On these facts, you have likely violated the Pregnancy Discrimination Act of 1978.
But let’s be frank: Without more to go on, Lisa will never sue you. Managers discriminate in hiring every day, but they seldom reveal the true reasons behind their decisions. Job seekers in wheelchairs know all about this insidious bias. So do job seekers of color, job seekers with foreign accents, job seekers over 40, and others. These workers must swallow rejections from companies where they could thrive, yet are unable to call anyone to account.