Sun, Nov 22, 2009
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Name:
Exmun
Comment: More employers should just pay the unemployment benefits. A majority of employment discrimination cases that I've ever been involved with (on either side) have been because an employer, who might not have initially broken the law by discriminating, refuses to just pay the unemployment benefits. Then once the employee gets financially pinched, here comes the lawsuits.
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Name:
beegirl
Comment: Exmun, is it legal to write in a work contract that a female employee cannot become pregnant? I know there are special laws about pregnancy, but I can't imagine there being a pregnant Hooters waitress, for example.
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Name:
MER82
Comment: Beegirl, I think you are talking about a BFOQ or something like that-sorry forget the term but it applies to certain jobs-stating that there are bonafide qualifications required for the job. Not sure what applies to this situation without the particulars of the case.
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Name:
Exmun
Comment: Beegirl, That is possible in some cases. Mer82 is correct that it would have to be a BONAFIDE qualification in order for the policy to pass muster. If the job involved activity that was threatening to unborn children, like the exposure to a certain form of radiation known to cause birth defects (there would have to be supportable evidence), then an employer could make it a work requirement that no pregnant women could perform that job. However, this is the exception and not the rule. A wise employer should also look for ways to not restrict employment to other jobs that might not be harmful to pregnant women. The trick is to make sure that the policy can be supported by independent evidence and does only so much discrimination as might be necessary for bonafide job qualifications. Anything less is asking for a lawsuit.
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Name:
Exmun
Comment: Beegirl, another way to possibly handle the situation of a pregnant Hooters waitress might be to build into the job a weight/height requirement ... a weight maximum or a height minimum. Or incorporate a height/weight chart. The employer must make sure that the height/weight requirement does not have a 'disparate' effect on a particular racial group/nationality. E.g. a height/weight requirement that affects a certain racial group significantly more than others. Ironically, it's not per se illegal to discriminate against an employee on the basis of height, weight unless the laws of that particular state prohibit this type of discrimination (most states do NOT have such laws). Typically, UNLAWFUL discrimination is only on the basis of a suspect class like: race, national origin, gender, color, religion and in some states sexual preference. The problem with many policies that are challenged is that they overtly neutral policy might have an indirect/disparate effect on one of the suspect classes (race, color, religion, etc) and it serves as a de facto discriminatory policy. The 40/40 Club is probably free to discriminate on the basis of looks. And it's a lot easier to discriminate like this up front, by not hiring someone who doesn't fit the image. You've just got to watch it with firing on the basis of "pregnancy," because once you do it is such a short leap to discrimination on the basis of sex/gender that it's a place ripe for lawsuits. It was probably easier to just pay the unemployment benefits rather than have to get sued and settle later in the game after expensive lawyers and embrassing press.
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