Reduction in Shifts Leads to Pregnancy Discrimination

By Allison J. Hartnett - McMahon Berger, P.C.

December 7, 2017

As a result of removing a pregnant employee from its automatic computer scheduling, Bob Evans Farms engaged in discrimination in violation of the Pregnancy Discrimination Act (PDA) according to the U.S. District Court for the Western District of Pennsylvania. EEOC v. Bob Evans Farms, LLC, No. 2:15-cv-1237 (Aug. 17, 2017).

Hayley Macioce (“Macioce”) began her employment with Bob Evans as a server in 2009. During her employment, Bob Evans did not promise her a set number of hours or shifts, but on average she worked five shifts per week. In 2012, Macioce became pregnant with her first child. During the course of her pregnancy, Macioce did not request or require any leaves of absences and maintained her normal working hours. Following the birth of her child, Macioce took a leave without any issues.

In 2014, Macioce informed Bob Evans of her second pregnancy and stated she intended on working up until she gave birth. At this point in time, Jay Moreau, former assistant general manager, had been promoted to general manager and was in charge of scheduling the servers’ shifts. Bob Evans used an automatic computer scheduling system that relied on factors such as employees’ availability and needs of the restaurant. After Macioce announced her second pregnancy, however, she was removed from the scheduling system. As a result, to obtain work, she was forced to inform her manager for which shifts she was available and to pick up shifts during gaps in the upcoming weekly schedule. Between July 31 and September 12, Macioce worked only nine shifts, a significant decrease from the five shifts per week she had been working prior to her pregnancy announcement.

As a result of this change in scheduling and reduction in shifts worked, Macioce filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC then filed a lawsuit alleging pregnancy discrimination under the PDA. To succeed on the PDA claim, the EEOC had to show only that her pregnancy was a reason (“motivating factor”) for removing her from the schedule. Moreau, the person in charge of scheduling, stated he was merely attempting to prepare for Macioce’s upcoming unpredictable scheduling. The court agreed with the EEOC that it was clear Bob Evans removed Macioce from the automatic scheduling system because it assumed her pregnancy would make her unavailable. The court concluded:

The direct record evidence establishes that the reason Macioce (1) was removed from the automatic scheduling system, (2) was expected to call-in as able to work before she would be permitted to work, and (3) was to be placed onto the schedule only if needed to fill a hole after the automatic schedule was generated–were Moreau’ s assumptions about her pregnancy and future childbirth.

In a rare occurrence, the court granted the EEOC’s motion for summary judgment as to Bob Evans’ liability for violating the PDA. The court also denied the company’s request to dismiss the EEOC’s requests for emotional distress and punitive damages. The parties subsequently resolved the case and avoided going to trial over the issue of damages to Macioce as a result of the unlawful conduct.

Employers must be cautious when taking any action that could be deemed negative toward a pregnant employee. Making assumptions about an individual’s status, such as what the manager in this case did, can be a recipe for significant liability under the law. Prior to making any decisions concerning a protected employee’s terms and conditions of employment, consultation with experienced counsel should occur.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.