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Employers faced with pregnancy, transgender and social media risks: PLUS panel

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LAS VEGAS — Pregnancy and transgender discrimination are among the employment practices liability claims likely to continue to trouble employers, while the National Labor Relations Board's aggressive stance on the use of social media by employees is a major concern as well.

These were among the topics discussed during a session on employment practices liability insurance claims at the Professional Legality Underwriting Society's annual conference in Las Vegas last week.

Pregnancy discrimination “is probably one of the more dangerous types of claims,” said Lynette M. Lyngaas, Rolling Meadows, Illinois-based senior vice president, executive liability, with Monitor Liability Managers, a unit of W.R. Berkley Co.

Even if terminating an individual who is either pregnant or just back from leave is merited, “they can make a very sympathetic plaintiff, so it's very difficult to prove they weren't doing their job,” Ms. Lyngaas said.

“These claims are very costly” as well, Ms. Lyngaas said, adding that many professional organizations, including law firms, are frequent defendants in these cases.

“You guys don't get it. You can't terminate people when they're pregnant,” she said. “You need to accommodate.”

Claims filed by transgendered individuals are also of concern. ”Employers really need to be careful on not discriminating based on sexual orientation,” Ms. Lyngaas said.

“We're seeing more cases” in this area, said Michael A. Kaufman, managing partner at Kaufman Dolowich & Voluck L.L.P. in Woodbury, New York, who moderated the session.

Addressing this issue involves education, including educating the entire workforce that transgenderism “is not a choice” and embarking on an interactive process to come up with “an inexpensive resolution that works,” he said.

The NLRB’s position on social media by employees is another significant issue. Experts have warned that both unionized and nonunionized employers must avoid disciplining workers for any social media postings that touch on general work conditions or risk an adverse ruling from the National Labor Relations Board.

“It’s a huge concern of mine,” Ms. Lyngaas said. This is definitely going to become an emerging issue for employers, “especially if you look at the employees that continue to enter the workforce” who are younger and believe their work conditions are open for discussion on Facebook or Twitter, she said. “That’s how they communicate,” she said.

“They’ve been texting since they were 5,” said Janet Emerson Bashen, president and CEO of Houston-based Bashen Corp., a human resources consulting firm. “Social media is needed, and it’s something we need to get used to.”

However, its use “has to be limited in the workplace to a business purpose,” said George T. Glavas, New York-based specialty claims counsel with Hub International Northeast Ltd., a unit of Hub International Ltd. “You cannot have employees sitting on Facebook or Instagram or Twitter” and sending out messages about their bosses and peers, which “wastes a lot of time,” he said.