Pregnant Welder Sues Employer for Discrimination

On August 10, 2010, the Sixth Circuit Court of Appeals issued its decision in Spees v. James Marine, Inc., which affirmed summary judgment in favor of the employer in part.

The plaintiff, Heather Spees, discovered that she was pregnant shortly after being hired as a welder for James Marine, Inc. Ms. Spees’ physician informed her that she could continue to work as a welder as long as she wore a respirator. Because her employer did not believe that she could continue to work safely as a welder, Ms. Spees was instructed to return to her physician and obtain a more restrictive note. As a result, she was reassigned to a light duty position in her employer’s tool room. Two months later, Ms. Spees was placed on bed rest for the duration of her pregnancy. Because Ms. Spees’ had not yet worked 90 days for her employer, she was entitled to only two weeks of approved leave and was not eligible for FMLA leave. When her employment was terminated, Ms. Spees filed suit alleging pregnancy and disability discrimination.

The district court granted summary judgment to the employer for all of Ms. Spees’ claims. However, the Court Appeals only affirmed the district court’s judgment in regards to Ms. Spees’ claims for the termination of her employment. The Court agreed that her employment termination was based on a combination of her being unable to return to work and her lack of available medical leave, not upon her pregnancy.

The Court of Appeals reversed the district court’s judgment regarding to Ms. Spees’ relating to her reassignment to the tool room. The Court found that the transfer to the tool room did constitute an adverse employment action, even though Ms. Spees was paid the same salary. The Court noted that a position in the tool room did not require any specific training, unlike the welder position. The Court also noted that Ms. Spees was assigned to the night shift, which adversely affected her ability to raise her daughter as a single mother. The Court found that there was evidence demonstrating that Ms. Spees’ pregnancy was at least a motivating factor in the decision to transfer her to the tool room. Finally, the Court found that Ms. Spees could make out a prima facie case that her employer regarded her as having a disability when making the decision to transfer her to the tool room.

Author: Ryan Bonina


Employment Law & Workers' Compensation - Legal Update 2010

The Employment Services Group at Roetzel invites you to our annual complimentary seminar to discuss current issues affecting employers and recent developments in labor and employment law. This program is designed to provide practical guidance on how such issues influence your employment decisions and impact business operations. Join human resource professionals, in-house legal counsel, office administrators, risk management professionals and workers' compensation specialists at one or more of our programs in Ohio.

Sexual Harassment: Policies and Enforcement -
Learn the types of prohibited harassment in the workplace as well as recent sexual harassment litigation and case developments. The increasing number of claims filed by males and the issue of same-sex harassment will be addressed. We will cover the need and importance of re-focusing harassment training beyond simply conduct that is considered to be "motivated by sexual desire" to encompass conduct often dismissed as "locker room behavior" or "horse play.

Occupational Safety and Health Administration (OHSA) and Workplace Safety Update - This session will review OSHA's increased enforcement efforts under the Obama administration and its corresponding implications for employers. The proposed new safety standards currently making their way through OSHA's rulemaking process will also be covered.

Workers' Compensation: The Process from Start to Finish - Get an in-depth perspective of the workers' compensation process beginning with pre-injury action items through claim containment, while introducing relevant case law throughout as applicable. This session will also address:
  - Actions that can be taken before an injury occurs
  - What to do when an injury happens
  - Investigating the claim including its certification or rejection
  - The Industrial Commission hearing process and containment issues

Handbooks and Policies You Should Have - What you should consider when tailoring a handbook to fit your company's needs - from the general to the specific, including drafting language to preserve the sanctity of your company while avoiding litigation. Recent electronic communication trends, dress code, attendance policy, and what to do when you want to update or change your policy will also be discussed.

Fair Labor Standards Act (FLSA) Exemptions - Exempt vs. Non-Exempt: Learn how to comply with FLSA exemptions, including current record keeping requirements and proposed Department of Labor (DOL) rules regarding additional requirements. We will share current trends in FLSA enforcement and litigation, including how technology impacts hours worked and the DOL's focus on the classification of workers as independent contractors.

1:00 - 1:30pm - Registration
1:30 - 5:00pm - Program
5:00 - 6:00pm - Cocktail Reception*
*In lieu of a cocktail reception, the Toledo seminar will include an extended break with appetizers for networking purposes and will conclude at 5:20pm.

Columbus - September 9

Hilton Columbus at Easton
3900 Chagrin Drive
Columbus, OH 43219

Akron - September 22
John S. Knight Center
77 East Mill Street
Akron, OH 44309

Toledo - September 29
The Pinnacle
1772 Indian Wood Circle
Maumee, OH 43537

Independence - October 14
Embassy Suites Cleveland-Rockside
5800 Rockside Woods Blvd.
Independence, OH 44131

Cincinnati - October 20
Sharonville Convention Center
11355 Chester Road
Sharonville, OH 45246

RSVP by September 2. Go to
www.acteva.com/go/roetzel to register online. Space is limited. For additional information or to RSVP by phone, call Robyn Rea at 330.762.7662.


Break Time for Nursing Mothers Required under the FLSA

In a previous blog article posted September 22, 2009, Lactose Intolerant?, we reported that the Supreme Court of Ohio ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against on the basis of pregnancy when the former employee's deposition testimony revealed that the employer did not know the reason for her unauthorized breaks.
However, the Patient Protection and Affordable Care Act (PPACA), signed into law on March 23, 2010, requires unpaid break time for nursing mothers. The PPACA amended Section 7 of the Fair Labor Standards Act (FLSA).

In July 2010, the U.S. Department of Labor issued Fact Sheet #73 titled, "Break Time for Nursing Mothers under the FLSA" to provide general information on this requirement.

The general requirements include "reasonable break time for an employee to express breast milk or her nursing child for 1 year after the child's birth each time such employee has need to express the milk" and "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk". Employers must provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.

Only non-exempt employees are entitled to breaks to express milk under the Fair Labor Standards Act, although individual state laws may impose such requirements.

See a full copy of Fact Sheet #73.

Author: Ann Eberts