The Ninth Circuit Court of Appeals recently decided that a grocery supply company must respond to a subpoena regarding the strength tests it gives to employees. The tests allegedly discriminate against pregnant women.

A former employee of McLane Company made a complaint with the Equal Employment Opportunity Commission in 2008. The female employee complains that she had a baby, returned from maternity leave to the company, and was asked to take a strength test. She was told that unless she passed, she could not return to her former job as a cigarette worker. The woman took the strength test three times and failed each time. She was subsequently terminated.

After the female employee filed a complaint with the EEOC, it began an investigation. The company voluntarily provided information to the EEOC about the strength tests and the workers who were required to take the test. In order to respond to the request, the company made an employer identification number system that would protect the identities of the workers who had taken the test. The EEOC was given each worker’s gender, score on the test, and job title, but the company did not give the EEOC the workers’ social security numbers, names, addresses, or telephone numbers. If an employee who took the test was later fired, the company refused to tell the EEOC when or why the termination occurred.

The EEOC demanded more information about the employees who took the test as well as those who were fired. A federal judge ruled in favor of the company, finding that the employees’ information was confidential.

A three-judge panel of the Ninth Circuit reversed the decision, finding that the EEOC needed to learn the employees’ contact information in order to determine whether or not there was a pattern of negative treatment by the company in ordering the strength tests. The panel also ruled that the information about why the terminations occurred were clearly relevant to the EEOC’s investigation and had to be revealed.

After the ruling, the EEOC announced that it was pleased that it would be able to receive the information necessary to complete its investigation into the company’s practices. Specifically, the EEOC is likely to examine why the strength tests were given and whether they amounted to illegal discrimination against women in general or pregnant women in particular.

Under federal and state law, pregnancy discrimination is illegal. Pregnancy discrimination occurs when an employer refuses to hire a pregnant woman because of its prejudices against pregnant women, or when a woman is fired because she becomes pregnant. Women also cannot be legally discriminated against in any aspect of employment because they are pregnant, including pay, job assignments, benefits, or any other term or condition of employment.

However, if a woman cannot perform the major functions of her job because of a pregnancy, a potential employer does not have to hire her. If a pregnant employee becomes unable to perform some of the functions of her job because of a pregnancy, the employer must treat her the same way it would treat any other temporarily disabled employee. For example, the employer may provide her with light duty, modified tasks, disability leave, unpaid time off, or another assignment.

At Liberty Law, Micha Star Liberty believes that any company that discriminates against pregnant women should be held liable under federal and state law. If you believe that you have been discriminated against in the workplace because of a pregnancy, call Oakland pregnancy discrimination attorney Micha Star Liberty at 510-645-1000 or 415-896-1000. She works with employees who have faced illegal discrimination in the workplace. Call today to learn more or to schedule a free consultation.

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