Off-the-Cuff Comments: Potential Pregnancy and Parental Leave Pitfalls in the Workplace

Most employers are generally aware that federal and state laws protect employees from adverse employment actions (termination, demotions, reduction in pay) because of pregnancy, including Title VII, the Family Medical Leave Act, and – potentially – the Americans with Disabilities Act. Employers should also be aware of and follow the Pregnant Workers Fairness Act which passed in 2023. However, employers should also be conscious of how co-workers or supervisors communicate with employees who either are pregnant or may be planning to take parental leave to assist with a partner’s recent pregnancy, especially within the Seventh Circuit: ill-received off-the-cuff comments that some employees may think they made in jest could give rise to a hostile work environment claim under federal law. Also, what one person may view as humor, another may view as harassment.

What Creates a Hostile Work Environment?

The Seventh Circuit Court of Appeals (which encompasses the United States District Courts in Illinois, Indiana, and Wisconsin) recognizes “hostile work environment claims” under Title VII. Unlike a traditional Title VII claim, which requires an adverse employment action such as termination, demotion, or reduction in pay, a hostile work environment claim only requires that a plaintiff demonstrate that (1) the work environment was subjectively and objectively offensive, (2) the harassment was based upon membership in a protected class (which includes sex and pregnancy status), (3) the conduct was severe or pervasive, and (4) there is a basis for employer liability. Accordingly, an employee could potentially file a hostile work environment claim against their employer even without suffering an adverse employment action.

The Seventh Circuit has seen its fair share of employees filing hostile work environment claims related to pregnancy and parental leave, and many claims are premised – at least in part – on comments made by co-workers and supervisors. Given that a key element of any harassment or discrimination claim is that the wrongful actions be premised on a protected class, these cases hinge on a plaintiff providing some evidence from which a jury could infer that certain treatment was motivated by that protected class status. Often, the easiest way to prove that motivation is through comments or statements by another employee.

Although many times a plaintiff may rely on a supervisor’s comments to support a claim, it is important for employers to understand that comments or actions by a co-worker (who has no supervisory authority over the plaintiff) could also give rise to a hostile work environment claim, depending on the circumstances. While the Seventh Circuit does recognize that a co-worker’s statements likely impact a work environment less so than a supervisor’s comments, courts will still consider co-workers’ statements and actions when evaluating a hostile work environment claim.

What Are Some Examples of Inappropriate Comments?

Inappropriate comments or actions may not necessarily be obvious. Seemingly innocuous statements or comments could still provide an inference of harassment based on sex or pregnancy, including things like:

• Suggesting that other employees’ workloads will increase or be affected by another employee’s parental leave.
• Making suggestions that parental leave is too long or unnecessary or that it imposes a financial hardship on a company.
• Suggesting that leave is not necessary (example: “what does a man really do on parental leave?”)

Even if a hostile work environment claim is ultimately dismissed by a court, dismissal often does not come until after discovery and summary judgment – which could be months after a lawsuit is brought. And even if litigation costs are covered by insurance, hostile work environment and other workplace harassment and discrimination claims are often very time-consuming for the employer. Accordingly, while a claim may be defensible, it is still best practice to try and avoid at all costs.

What Can Employers Do?

So, what can employers do to prevent hostile work environment claims and ensure that their employees are not subjected to potential workplace harassment?

• Have an anti-harassment and anti-discrimination policy in place that is compliant with federal and state laws.
  • Also, be cognizant that many larger municipalities may also have local laws or ordinances which may be more expansive than state or federal law. Often, there are additional protected classes within local laws and ordinances that are not covered under state or federal laws.
• Be sure all employees, even those who are not necessarily in a supervisory role, are provided anti-harassment/discrimination training.
  • As part of that training, educate all employees on how their seemingly “joking” comments and actions could potentially form the basis of a claim.
• Have a system in place for employees to report comments directed at themselves or comments they may have overheard directed at other employees and, importantly, have a system to document those reports.
  • Keep contemporaneous records of what was reported and, importantly, of what was done in response to the report.
• Take complaints or observations seriously and address them promptly. Even if comments or actions are made seemingly in jest, they still could bolster a lawsuit. Remedial action does not always need to be disciplinary; coaching (followed by documentation of the coaching) could go a long way in both preventing future inappropriate comments or actions as well as staving off liability.

Bottom Line

In sum, jokes and sarcastic comments and actions about someone’s protected status always pose a risk in the workplace. Coworkers may be friends outside of work, and some may have a relationship where those jokes are tolerated or even welcomed, but employers should be cautious if that behavior occurs in the workplace, as it could subject them to liability.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.