Working expectant mothers in Oklahoma who feel they’ve been discriminated against because they’re pregnant have a wider berth for bringing private lawsuits — as a result of a statutory loophole closed last month and a ruling by the Oklahoma Supreme Court late last year. Gov. Brad Henry on April 19 signed Senate Bill 1814, which amends the Oklahoma Anti-Discrimination Act (OADA) to include pregnancy as a form of discrimination — a loophole upon which a recent private case was dismissed and that all but a few states already had closed. Meanwhile, every employer — regardless of size — can face lawsuits under the OADA, based on a November ruling. For years, state courts exempted employers with fewer than 15 employees, reasoning such cases — which have no limit on damages — could bankrupt small companies. But in a 2009 racial discrimination case (Smith v. Pioneer Masonry Inc.), the Oklahoma Supreme Court overruled lower courts’ decisions to dismiss the case on the size exemption, ruling no employer is immune to what are known as "Burk tort” claims alleging violation of public policy.
Federal law’s from ’78S.B. 1814 closes a loophole between federal and state courts, said Sen. Brian Crain, R-Tulsa, author of the bill. The 1978 Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to include pregnancy as a form of discrimination. But until last month, no state legislation amended the corresponding state law to include pregnancy. "I’m proud we’ve closed the loophole,” Crain said. "We need to support people who are building families, and the idea of firing women because they’re pregnant is antiquated and approaching barbaric.” Kathy Neal, an attorney with McAfee & Taft law firm in Tulsa, successfully defended the Veolia Water North America-West LLC sewage treatment company in a recent pregnancy discrimination lawsuit brought by a fired operator/lab technician who worked 11 months in its Yukon plant. Based on the loophole in Oklahoma law, a judge in Oklahoma’s Western District in late December dismissed the employee’s Burk tort claim and the employee subsequently dropped her Title VII discrimination claim. "In a single lawsuit, claimants generally will file as many causes of action — or alternative ways to entitled damages — as they can,” Neal said. While Burk tort damages are unlimited, those under Title VII are capped at up to $300,000, depending on the size of the company, she said. Title VII protects employees who work for companies that have at least 15 employees.
Lawsuits on the riseIn Bryant v. Veolia Water North America-West, the plaintiff said she was fired two weeks after she, following her doctor’s orders on weight limits, requested a work buddy to help move large water hoses. But Veolia said she was fired because of habitual tardiness and performance problems that predated her pregnancy. "The fact an employee is pregnant doesn’t stop an employer from having a legitimate right to require employees to adhere to their rules and policies,” Neal said. As with all performance issues, employers should keep careful and consistent documentation, she said. Meanwhile, the number of pregnancy discrimination lawsuits continue to rise. Nationally, the Equal Employment Opportunity Commission processed 6,196 charges in 2009, down slightly from 6,285 in 2008, but up from 5,587 in 2007 and 4,901 in 2006. Of those, 78 pregnancy discrimination cases were filed in Oklahoma last year, compared with 67 in 2008, 75 in 2007 and 57 cases in 2006. Outcomes favorable to charging parties are found in about 25 percent of lawsuits, said EEOC attorney Diana Johnston. She speculates the increase in pregnancy discrimination lawsuits is due to an increasing number of women in the work force and a poor economy, in which overall charges tend to rise. "Sometimes employers make assumptions about women,” Johnston said. "They think they’re going to have children and therefore will be less productive in the work force,” she said. "But even with statistics that show women likely will have gaps in employment because they’re staying home with children, you have to treat pregnant women individually and as you’d treat other employees with other kinds of disabilities,” Johnston said. "A lot of women take a very short time off work for pregnancy.”
Working MomsWho’s on the job? Among mothers with infants in 2006, 56 percent worked outside the home. Among college-educated women with infants, 65 percent did. In 2004, 72 percent of mothers 44 and younger who didn’t have infants worked. Participation ranged from 61 percent for those whose youngest children were 2 or younger to 80 percent of moms whose youngest children were 12 or older. SOURCE: U.S. Census Bureau.