127.72 Termination because of pregnancy, childbirth, maternity leave or related medical condition

Also see sec. 844 re: remedies

The imposition of medical restrictions by the Complainant’s treating health care professional led to her lay-off. However, this would not constitute sex (pregnancy) discrimination unless it was shown that the Respondent either failed to follow its own policies regarding such restrictions, or that it treated the Complainant differently than it had treated employees with non-pregnancy related temporary medical restrictions. In this case, other employees were allowed to use accrued leave to cover a temporary absence for medical reasons. The Complainant failed to show that she had accrued leave sufficient to cover her absence for the duration of her pregnancy. Therefore, she failed to show that she was similarly situated to these employees. In addition, the Complainant failed to show that the Respondent did not follow its own policies in regard to her lay-off. Slife v. Mt. Morris Mutual Ins. Co. (LIRC, 11/03/05).

The Respondent failed to offer to place a fan or air conditioner in its vault in order to make the Complainant more comfortable while she was pregnant. Nor did it offer her the opportunity to temporarily trade duties with another employee. The record does not show that the Respondent accommodated other employees with temporary medical restrictions not related to pregnancy by physically modifying their work environments or by allowing them to temporarily trade duties with other employees. Therefore, the Respondent’s failure to accommodate the Complainant in this matter did not demonstrate sex (pregnancy) discrimination. Slife v. Mt. Morris Mutual Ins. Co. (LIRC, 11/03/05).

The Complainant failed to prove a prima facie case of sex discrimination with respect to discharge where she was unable to show that she was meeting the employer’s legitimate job performance expectations at the time of her termination and where she was unable to show any direct or indirect evidence that the employer’s termination decision was motivated by her pregnancy. Levenhagen v. Woodward Communications (LIRC, 09/30/92).

The Respondent, a school of dentistry, did not unlawfully discriminate against the Complainant on the basis of pregnancy when it did not allow her to take a few weeks off work at the beginning of the fall semester to have her baby. Instead, the Respondent gave the Complainant the option of taking a leave for the entire fall semester and then returning for the second semester, but as a junior clinic supervisor, rather than as a regular clinical faculty member. The Respondent established that appointing someone else as the clinical supervisor for only the first semester and then re-appointing the Complainant as the supervisor for the second semester would present the problem of not providing for continuity in the students’ development of clinical skills. Krause v. Marquette Univ. (LIRC, 06/30/92).

A salad bar employee failed to show that she was terminated because of her pregnancy where the employer showed that it had eliminated the salad bar for financial reasons. Although her supervisor had expressed concern over the employee’s pregnancy, the Complainant failed to subpoena the manager to testify at the hearing. Without additional testimony, the manager’s comments about her pregnancy were insufficient to demonstrate that they were connected to her termination. Yerke v. Wood River Inn (LIRC, 02/05/92).

There was no evidence of sex discrimination where a non-pregnant laid-off salad bar worker was rehired for a short time to do salad and computer work and a pregnant laid-off salad bar worker was not rehired since the pregnant laid-off employee could not perform the computer work required by the employer. Yerke v. Wood River Inn (LIRC, 02/05/92).

In order to establish a prima facie case of discrimination based on pregnancy, the Complainant must establish: (1) that she was pregnant, (2) that she was capable of doing the job, and (3) that she was discharged from the job. Although the Complainant established a prima facie case, she failed to offer sufficient evidence that the Respondent’s reasons for discharge were pre-textual. The individuals who discharged her did not know that she was pregnant at the time of the discharge. Further, the Respondent has employed several women who became pregnant while working for the Respondent. Martin v. Mars Cheese Castle (LIRC, 07/02/91).

The Respondent violated the Wisconsin Fair Employment Act when it laid the Complainant off because it anticipated that her pregnancy would cause future absenteeism. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).

The Respondent discharged the Complainant because of marital status and pregnancy where the employer displayed prejudgment that pregnancy would limit the Complainant’s ability as a waitress and told her that termination would save her from embarrassment. Howard v. The Cloisters (LIRC, 08/24/90).

The Respondent’s argument that a back pay award should not have extended until the date the Complainant (who was discharged because of pregnancy) delivered because it was not “logical” to believe she would have worked up to her delivery date embodies the same type of preconceptions about the effects of pregnancy on the employee’s abilities as was found to have violated the Wisconsin Fair Employment Act. Howard v. The Cloisters (LIRC, 08/24/90).

The Administrative Law Judge erred in dismissing the complaint at the close of the Complainant’s case where the Complainant had made out a prima facie case by proving that she had been pregnant, that she had been capable of performing her job as evidenced by having passed her probationary period less than two weeks before she was fired, that she had only been criticized for her performance by her foreman on one occasion and that after that occasion she performed her job as required, and that she was discharged about two weeks after she first informed the employer she was pregnant. Although evidence concerning the Respondent’s asserted reasons for terminating the Complainant - that she was slow and bossy - apparently was received into the record during the Complainant’s case in chief, the Complainant offered evidence to show that the reasons were pre-textual. Matthes v. Schoeneck Containers (LIRC, 03/11/88).

Concerns about the safety of allowing a pregnant employee to work in certain situations may be a valid reason to transfer that employee to another position, but in each case an objective analysis of the Complainant’s actual physical capabilities and the job requirements is necessary. An employer’s good faith or subjective belief will not save an otherwise discriminatory decision. Bartelt v. Brakebush Bros. (LIRC, 10/20/87).

Discharging an employee for failing to disclose her pregnancy is not substantially different from discharging an employee because of her pregnant condition. City of Watertown Pub. Library v. LIRC (Jefferson Co. Cir. Ct., 04/14/86), aff’d (Ct. App., Dist. IV, unpublished opinion, 04/02/87).

An employer had a valid business reason for filling the position of an employee during her maternity leave. Even though the pregnancy played a part in her subsequent termination when she declined the relief position offered to her, the employer’s policy pertaining to medical and maternity leave treated similarly-situated temporarily disabled men and women equally. DeLisle v. LIRC (L’eggs Prod./Hanes Corp.) (Milwaukee Co. Cir. Ct., 03/29/84), aff’d, (Ct. App., Dist. I, unpublished opinion, 12/11/84).

An employee failed to show discrimination where she had returned to work after her maternity leave, found that her old job had been eliminated, and was given a new job with the same responsibilities and pay as her old job. An employer’s comment to the effect that “you are not really going to come back to work with those two babies” was not enough to show an unlawful motive. Luecking v. Winnebago County (LIRC, 03/12/84).

It was discrimination to terminate an employee on the basis of an unfounded expectation that her doctor would order her to quit work because of her pregnancy. Molitor v. Schauer Enterprises (LIRC, 02/21/84).

It was not discrimination to fail to reinstate a nursing assistant who had taken maternity leave where the employer did not guarantee reinstatement to any employee who took leaves for any reason, where others returning from maternity leave had been reinstated and the only position available upon her return required qualities she did not possess. Forseth v. St. Michael Hosp. (LIRC, 12/14/83).

Discharge of a store manager for lateness and excess telephone charges which began after her announced pregnancy was not a pretext for sex discrimination where the Complainant was the only store employee and her employer endeavored to otherwise accommodate her pregnancy. Szczerbiak v. Forest Labs (LIRC, 07/06/83).

A waitress alleging that her discharge was due to her pregnancy established a prima facie case of discrimination by showing that her work was acceptable and that her employer told her she was being fired because she could no longer lift heavy weights. The employer’s last-minute allegations of poor appearance and attitude were a pretext for its decision to fire her when she became pregnant. Lenich v. Dana’s Deli (LIRC, 03/29/83), aff’d sub nom. Dana’s Deli v. LIRC (Lenich) (Waukesha Co. Cir. Ct., 01/20/84).

An employer’s rule requiring an employee to terminate her employment at the end of her third month of pregnancy was discriminatory. Mill Fab v. LIRC (Knight) (Dane Co. Cir. Ct., 07/30/81).

Where an employee did not refute an employer’s contentions that she was discharged for breach of confidentiality, failure to properly keep records and complaints from persons supervising the people she dealt with, she was not discriminated against on account of sex merely because the decision to discharge her took place while she was on maternity leave. N.W. Community Action v. DILHR (Foster) (Douglas Co. Cir. Ct., 04/25/78).

A rule requiring pregnant employees to take a leave in their fifth month regardless of their physical or medical condition was arbitrary and sex-biased where the employer could not demonstrate a compelling interest in the rule, and an employee discharged for violating the five month rule should be reinstated even where the employer could also have discharged her for unsatisfactory work performance. Nursing Homes v. DILHR (Dane Co. Cir. Ct., 01/22/74).