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A recent decision from the Oregon Court of Appeals highlighted some of the best ways to get sued for pregnancy discrimination. The July 2013 decision in Kemp v. MasterBrand Cabinets affirmed a trial court ruling for the plaintiff in a wrongful discharge pregnancy discrimination case.

There are a lot of ways an employer can get sued when it has a pregnant employee because there are many rules and laws that need to be followed – family leave law permits the employee to take time off for pregnancy complications, and for the delivery, and for family bonding time too.

In the recent case, Katie Kemp was an employee of MasterBrand Cabinets in Grants Pass. She helped stock and transport cabinet doors from the warehouse of the facility to the prep department. It was a blue collar setting, and her work involved physical labor.

Kemp worked the second shift of the day, from 3:15 p.m. to 11:45 p.m.; on Fridays, her crew closed down the shop and made sure that things were ready to go for the next shift Sunday night. MasterBrand said that a standing rule required employees on that Friday night shift to work overtime if necessary to make sure everything was prepped for Sunday.

On one particular Friday evening, Kemp left at the end of her shift, and MasterBrand claimed her actions were insubordination and a violation of company policy because she didn’t put in the required Friday night overtime. The company fired her for these rule violations.

For the purposes of this column, let’s just stick to the basics. What are the five best ways to get sued for pregnancy discrimination?

1. Make sure company practices directly conflict with written policies.

If MasterBrand wanted to get sued, luckily its written handbook said the exact opposite of what it argued in its defense. The handbook instructed employees to clock out immediately upon the end of their shift, and that they were only permitted to work overtime if expressly authorized, in which case “as much advance notice of overtime as possible” would be provided. In fact, the supposed “Friday night rule” is not written anywhere in the company policies or memos or guidance. So the first step if you want to get sued is to make sure that your most up-to-date practices are not written anywhere, because a jury and judge will surely think you are just making something up.

2. Don’t document performance counseling sessions with employees.

MasterBrand’s termination statement for Kemp pointed out that she had been warned about this exact situation just a few months before. Of course, Kemp disputed that she had ever received a prior warning, and pointed out that no written documentation existed in her file.

This is probably one of the most basic but most effective ways to get sued – if and when engaging in discussions with employees about their performance deficiencies, try not to memorialize the conversations anywhere.

Don’t write notes to file, don’t shoot a quick email to human resources or the department manager, don’t include these conversations in supervisor logs or annual evaluations, and certainly don’t include them in disciplinary warning documents given to employees (and acknowledged by their signature).

3. Allow co-workers and managers to make derogatory statements without addressing them.

If MasterBrand wanted to get sued by Kemp, it was in luck – just a few weeks before she was terminated, she informed the company that she was a few months pregnant. And according to her side of the story, she then reported that co-workers and supervisors said derogatory things to her about her pregnancy.

A co-worker commented that she “wouldn’t be there much longer,” and that he “didn’t want to deliver no baby on the warehouse floor.” Kemp’s team leader allegedly became frustrated after learning that she couldn’t handle one aspect of her job because of her pregnancy and said, “What am I supposed to do with her then?!” The team leader told Kemp that she hoped no one else at the company gets pregnant.

The Court of Appeals decision does not reflect that anyone was ever disciplined for these statements, which is a great way to get sued.

4. Don’t listen to medical limitations.

Kemp brought in a doctor’s note that indicated some minor lifting limitations, and MasterBrand moved her to another position where she could work on smaller cabinet doors.

However, one of Kemp’s supervisors saved the day by allegedly forcing her to get another doctor’s note to say that she couldn’t do an aspect of her job even though Kemp said she could handle that work perfectly fine and the doctor’s note allowed that work.

By disregarding her medical limitations and harassing an employee in a paternalistic, overly protective manner, MasterBrand got back on track to get sued for pregnancy discrimination.

5. Bungle the investigation.

Kemp allegedly complained about the behavior to a different supervisor; when HR found out, Kemp alleges the HR manager chided her for reporting the complaints to that supervisor and admonished her for using the term “harassment.” Kemp then forced the complaint up the chain directly to the CEO, who decided it was best to meet with Kemp to get her side of the story – but in the presence of the HR manager and the offending supervisor!

Kemp claimed that the managers all disputed her version of events and that the CEO believed them over her. There is no report of MasterBrand taking any action against the managers or the HR representative.

This is the perfect way to clinch a lawsuit: Don’t take complaints seriously, dissuade employees from reporting problems, and show the employee that the company essentially is sticking its head in the sand.

Company leaders who do these five things will have a lawsuit in their laps before they know it! MasterBrand not only had to shell out $42,000 to the plaintiff, but also pay $144,000 to her attorney and spend more than $300,000 on its own attorney fees – plus appeal-related costs. At those prices, companies should treat employees’ pregnancies with care.

Rich Meneghello is the managing partner of the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.