Even in today’s modern times, it’s not uncommon for employers—especially those in traditionally male-dominated industries—to have concerns about the safety of pregnant employees. Although this may be understandable, it’s important to check preconceptions about the physical capabilities of pregnant women at the company door—or, as in one employer’s case, at the dock.

What Happened

Fullerton< CA-based SASCO Electric, Inc., maintained a 70-foot yacht, El Navegante, to entertain customers and business associates. For 4 months of the year, the boat was docked in Mexico, where it picked up company guests for short- and long-term cruises. The boat was captained by “Martin.”

In 2003, Martin hired “Sheila” to work as a deckhand on the El Navegante. Sheila had substantial experience working on large and small boats, and she was a licensed merchant marine. After just a few months on the job, Sheila was promoted to second captain.

Around that time, Sheila also got married. SASCO’s president personally congratulated Sheila on both her promotion and recent marriage, jokingly saying that “whatever you do, don’t get pregnant.” One month later, Sheila notified Martin that she was pregnant.

As Martin would later reveal through court testimony, he believed that women with small children would not be interested in working on boats, especially for long cruises. He also had concerns that a boat was an unsafe environment for a pregnant woman, and that Sheila’s desire to work on the El Navegante for as long as possible during her pregnancy was “cavalier.” Martin decided that for safety and liability concerns, he would not allow Sheila to accompany him on the boat’s upcoming cruise to Mexico.

Before telling Sheila that she wouldn’t be working the cruise to Mexico, Martin asked her to get a doctor’s release confirming that she could work without risking her own safety “or the safety of others,” meaning the fetus. Before Sheila could submit the requested release, Jordan sent Martin an e-mail stating that because of “budget constraints,” the company could afford to have only Martin and a deckhand on board for the Mexico trip, and that Sheila was being permanently laid off.

A few weeks later, Martin sent Sheila an unsolicited letter of recommendation that heralded her as “the hardest working, responsible, boat savvy individual to work with me during my 17 years on this vessel.” In conversations with other SASCO employees after Sheila’s termination, Martin admitted Sheila had been laid off because he was concerned about her ability to work safely on the boat while pregnant.

Company Held Liable for Bias

Sheila filed a complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH’s investigation revealed that, despite the company’s claim that Sheila was laid off because of budgetary constraints, Martin hired two independent contractors to crew the trip to Mexico along with his regular deckhand. The male contractor hired to fill Sheila’s position had little prior boat-handling experience and was objectively less qualified than Sheila.

After a 3-day administrative hearing, the DFEH found SASCO liable for pregnancy discrimination. It awarded Sheila back pay and $85,000 for the emotional distress she suffered following her termination. The agency also imposed a $25,000 administrative fine on the company. SASCO appealed to the California Court of Appeals. The court sided with the DFEH and upheld the award to Sheila and the agency’s fine. SASCO Electric v. Cal. Dept. of Fair Employment and Housing, Cal. Ct. Appeals (Dist. 4), No. D053492, (2009).

‘Safety Concerns’ and Pregnant Employees

Blanket prohibitions against pregnant women working in certain jobs or performing certain kinds of work are a form of pregnancy discrimination under both state and federal law. This is true even if the job is in an industry traditionally considered rugged or hazardous.

However, there will sometimes be legitimate safety concerns regarding pregnant workers, such as when toxic materials are present in the workplace or when the job in question ordinarily requires heavy lifting. In such cases, employers should prepare a list of essential job functions and potential workplace hazards, and then ask pregnant employees to obtain medical verification that they are capable of performing the job functions and working in that specific environment.

Employers in traditionally “male” industries and occupations are wise to take extra care in articulating, objectively, which safety concerns affect pregnant women, since outsiders may have an easier time believing that these employers maintain stereotypically biased views about the limitations of pregnant employees.

Practice Tip

Both state and federal law prohibit employers from maintaining blanket “fetal protection” policies based on the idea that certain types of work are presumptively unsafe for pregnant women. Each employee’s case must be individually evaluated.