10 Rules Of Etiquette That Will Save You From A Pregnancy Discrimination Suit

by Constangy, Brooks, Smith & Prophete, LLP

I am sure you have all heard by now about the $8.7+ million award against The Price Is Right in a pregnancy discrimination lawsuit filed by one of the show's models, Brandi Cochran. A summary of the lawsuit appears after the jump.

As I've previously reported, pregnancy discrimination is one of those hot issues for the U.S. Equal Employment Opportunity Commission. TPIR may really discriminate against pregnant models -- I don'TPIRWordmark.pngt know. I think it's a sticky issue where you have employees whose entire stock in trade is their looks. But the case still has good lessons for employers on how to deal with pregnancy. By following a few simple rules of etiquette, an employer is unlikely to ever get a pregnancy discrimination claim, and the ones it does get will probably be dismissed quickly. Here they are:

1. Pregnancy is always good news. Always, always, always. No matter what her occupation, no matter how much it will inconvenience you to have her take 6-12 weeks off for maternity leave, no matter what her marital or relationship status, no matter how many kids she already has versus how many you think is an appropriate and tasteful number. By the time she tells you, her boss, about it, you can be sure it is good news to her and must be treated by you as such. Twins are doubly good news. Triplets are triply good news. And so on and so forth. The more babies, the better. No matter what you really think.

2. All right, one little exception. If you can't trust me on No. 1, then you may gently ask her upon hearing the news, "Is that okay with you?" When she answers yes, then go back to No. 1. In the highly unlikely event that she tells you no, be kind and sympathetic, and assure her that everything will be just great and that she will feel so much better when her little bundle arrives. Do not under any circumstances say -- or even agree with her if she says -- that getting pregnant was stupid, that she will look like a whale in a few months, or that things at work really would be a lot easier if she had stayed childless or stayed put with the kids she already had.

3. Never suggest that she has "other options," much less ask her to pursue them. Yes, there are pregnancy discrimination cases where employers allegedly did this. Astounding! On the other hand, at least one employer has gotten in trouble for counseling against "options" and then terminating the employee after she "exercised" them. That, too, was a form of pregnancy discrimination, the court said.

4. Don't ever tease her about being big. I know you don't mean anything by it, and you probably think she looks cute with that basketball under her shirt, but she will not take it that way. This is especially true if, like Ms. Cochran, her career is all about having the figure of a Barbie doll. The only things you are allowed to say about her looks is that she is "beautiful" or "radiant." (Note to men -- beware of sexual harassment if you're too positive about her appearance.)

Barbie_Dolls.jpg"Barbie, you are looking especially radiant today!"

5. Don't pat her on the belly unless you are a member of her immediate family. That is an invasion of her personal space. (Also, the baby's.)

6. A miscarriage is always a tragedy. A stillborn birth is even worse. Like, at least 1,000 times worse. Don't ever say it's "for the best" or anything else to that effect. Even if she shared with you that she didn't want to be pregnant in the first place. The only permissible response is "I am so very, very sorry. What can I do?" Flowers sent to her home and a handwritten note of sympathy would also be appreciated.

7. You are always delighted to have her back at work when she returns. In her same job, with the same pay and perks and opportunities for advancement that she had before, plus lactation accommodation if needed. If you discovered while she was on maternity leave that she was stealing from petty cash and had not done a lick of work in six months, then you may qualify for an exception to this rule, but consult in advance with your employment counsel to make sure you are on solid legal ground.

8. Needless to say, the baby is always adorable*. The only babies cuter than hers were your own when they were that age, but of course you are biased.

*I have no trouble with this because I sincerely do think babies are adorable. But not everyone feels that way.

Mama_und_baby.jpgSo CUTE!!!

9. If your organization is affiliated with a religion or denomination that considers the pregnancy to be evidence of immoral behavior (usually because out of wedlock), you may or may not be able to take action against her, but make sure you are equally tough on similarly situated men. (And please note that guys do not have to be pregnant to be "similarly situated." They are similarly situated if they you-know-what outside of the bonds of Holy Matrimony.)

10. Of course she is welcome to bring the baby to work, as long as the work environment would be safe and the baby would not disrupt her work or the work of others. She's also welcome to have a flexible schedule or to telecommute, if the job lends itself to that and she's been a reliable employee.

Read on for a recap of the TPIR lawsuit . . .

Brandi Cochran v. The Price Is Right

I've been trying to find news of the actual court testimony in the case, but all I've been able to come up with is a copy of the lawsuit and news stories from when the suit was initially filed and since the verdict. Nothing in between. So please take my summary with a grain of salt because allegations in lawsuits usually turn out to be only about 50 percent true.

Anyway . . .

Brandi Cochran (nee Sherwood) was hired as one of "Barker's Beauties" back in 2002 when Bob Barker was still the host. As those of you who watch the show know, the "beauties" pose around A NEW CAR!!!!!!!!! or A NEW BOAT!!!!! or smile while running their lovely hands underneath A NEW X-BOX!!!!!!! while Johnny Olson's successor describes the product before the contestants bid on it. As the "beauties'" nickname implies, their chief job duty is to look really good, which -- to guys at least -- apparently makes cars, boats, and X-Boxes look so much better than they would otherwise.

Well, according to the lawsuit, which may or may not be true, but a jury found that it was mostly true, a pregnant woman isn't as good as a non-pregnant woman at making that Chevy Volt look awesome, so the show didn't like it when their models became pregnant. Ms. Cochran became pregnant once in 2007 and miscarried, allegedly because she was under so much stress knowing that the producers of the show had discriminated against pregnant models in the past. According to the lawsuit, her (female) producer told her that a miscarriage was "nature's way of getting rid of a bad baby."

Then Ms. Cochran became pregnant again -- with twins -- in the fall of 2008. She delayed telling the producers about it, again because of fear of discrimination, but finally in December 2008 spilled the beans. The same female producer told her that she had suspected it because Ms. Cochran was noticeably more well-endowed than she was under normal circumstances. Various co-workers and producers commented on her weight, and a stage manager allegedly said "Wide load coming through" about her. When she announced that it was twins, the executive producer allegedly put his head in his hands in despair.

Bebes12_008.jpgDouble trouble? (Not the actual Cochran twins.)

One of the twins -- a boy -- sadly died in utero in early 2009, and Ms. Cochran went out on leave. The other twin -- a girl -- was born prematurely in March 2009 and had medical problems. Ms. Cochran remained on leave and offered to return to work at the end of 2009 or early 2010. She says that the producers stalled in responding to her request to come back and, in February 2010, told her that her services were no longer required. She sued under California state law.

The only defenses from the show that I was able to find were (1) 40 percent of our models have been pregnant, so therefore we didn't discriminate against Brandi; and (2) we didn't need Brandi any more because we were happy with the crew of models we already had. The trouble with the second defense is that Ms. Cochran's evidence showed that TPIR had laid off several models not long before she announced her pregnancy, and she was one of the few who were retained.

In other words, pretty weak defenses, and if this is the best they could do, it's no wonder the jury found in Ms. Cochran's favor, awarding her $776,994 in actual damages. (The judge later tacked on $7 million in punitive damages.) But this may be only a sound bite. Let us hope so. The show says it plans to appeal.

TPIR has been sued by its models a number of times over the years, and this is the first time a model has won.

I noted that the show began a search for its first-ever male model while this lawsuit was pending, and that one was selected. Coincidence? I guess so. It was only for a "week-long gig."


Images from Wikimedia Commons.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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