A server who claims she was fired by 40 Steak & Seafood restaurant in Bismarck after becoming pregnant is being allowed to intervene in a federal lawsuit filed by the U.S. Equal Employment Opportunity Commission.

An upscale Bismarck restaurant accused in a federal lawsuit of firing a server because she became pregnant is denying the allegation and asking a judge to rule in its favor.

Erica Davidson was fired in 2015 not due to her pregnancy but because she refused to commit to working at least three days a week, according to the attorney for East 40 Inc., which does business in Bismarck as 40 Steak & Seafood.

The company “values its pregnant employees,” attorney Michael Hoffman said. “Customers treat them better and give them larger tips.”

The U.S. Equal Employment Opportunity Commission sued East 40 in December for discrimination, alleging that Davidson was fired less than half a year after being hired because she became pregnant.

Hoffman maintains in court documents filed in late May that restaurant owner Dale Zimmerman did not even know Davidson was pregnant until after she was fired by a manager for failing to commit to minimum work requirements.

“Davidson had the ability to work three days per week, or even more if she chose to,” Hoffman said. “Davidson simply chose not to.”

Attorneys for Davidson did not directly respond to a request for comment on that contention, saying only that she “is looking forward to her day in court.”

Davidson is seeking to intervene as a plaintiff in the lawsuit.

“The law preserves the important unconditional right of employees like Ms. Davidson to vindicate their own interests in these EEOC enforcement actions, and she is availing herself of that right,” attorney Thomas Fiebiger said.

U.S. Magistrate Judge Clare Hochhalter has not yet ruled on her request, but EEOC attorney Laurie Vasichek in a court document filed Thursday said she will not oppose it because Davidson is within her rights.

The restaurant also is accused of record-keeping violations, including discarding or destroying records related to Davidson’s job performance. East 40 denies the allegation.

The EEOC seeks an unspecified amount of money to compensate Davidson for lost past and future earnings and for emotional suffering, along with punitive damages. It also asks a judge to order the restaurant to institute policies to guard against any future discrimination.

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Reach Blake Nicholson at 701-250-8266 or Blake.Nicholson@bismarcktribune.com