Tag Archives: Pregnancy Discrimination Act

Colorado to Join Growing Number of States with Pregnancy Accommodation Obligations

Contributed by Allison Sues, May 26, 2016

The Colorado state legislature recently passed House Bill 16-1438 requiring employers to engage in an interactive process to assess potential reasonable accommodations for pregnant employees and applicants for health conditions related to pregnancy and childbirth.

If Colorado’s governor signs this bill into law, Colorado will join a growing group of states that have passed similar legislation, including Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Minnesota, Nebraska, New Jersey, New York, Rhode Island, Utah, West Virginia, and the District of Columbia. These state laws require employers to accommodate medical conditions and limitations stemming from pregnancy that may not separately qualify as a disability.

Key Points of State Pregnancy Accommodation Laws

pregnant employeeEach of the state laws include an undue hardship exception, meaning that employers do not need to provide the pregnancy accommodations if doing so would impose significant difficulty or expense. Most of the state laws provide that an employer may require that the pregnant employee produce medical documentation, including advice from a health care provider, regarding the requested accommodation. Many of the state laws require accommodation of conditions related to not only pregnancy, but also childbirth recovery and nursing. The statutes provide several examples of reasonable accommodations that employers may need to provide for pregnant employees, including:

  • Frequent or longer bathroom breaks
  • Breaks for increased water or food intake
  • Breaks for periodic rest
  • Obtaining or modifying equipment or seating
  • Assistance with manual labor
  • Temporary transfer to a less strenuous or hazardous position, if available (with return to position after pregnancy)
  • A part-time or modified work schedule
  • Leave – though most laws explicitly provide that an employer cannot force a pregnant employee to accept leave where alternative accommodations exist

Nearly all of the state statutes expressly prohibit retaliating against any employee who requests a reasonable accommodation for pregnancy-related conditions.

Relation to Current Federal Law

These state laws impose broader obligations on accommodating pregnant employees than what is currently required under federal law. Under federal law, employers must treat pregnancy-related disabilities the same as they would any other disability; however, they do not need to accommodate other conditions or needs stemming from a normal, healthy pregnancy if it does not qualify as a disability under the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendments Act (“ADAAA”).

Notably, while employers may not need to offer non-disabled pregnant employees with accommodations under the ADA, denying pregnant employees’ requested accommodations may also give rise to liability under Title VII’s disparate treatment provision, which the Pregnancy Discrimination Act amended to prohibit discrimination “on the basis of pregnancy, childbirth, or related medical condition.” 42 U.S.C. § 2000e(k). Denying a certain accommodation to pregnant employees but providing similar accommodations to other categories of employees – such as employees with on-the-job injuries or ADA disabilities – may allow pregnant employees to allege a discrimination claim that they are treated less favorably than other groups of employees.  Because of the varied – and sometimes conflicting – state and federal obligations surrounding accommodating pregnant employees, employers are encouraged to discuss such requests with legal counsel.

Reasonable Accommodation for Pregnant Employees

Contributed by Noah A. Frank

On March 25, 2015, the U.S. Supreme Court issued the highly anticipated Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) decision, Young v. UPS, no. 12-1226.

The Court found a genuine issue of facts as to whether UPS failed to accommodate in 2006 a part-time delivery driver, restricted from 70 to 20 pounds lifting during her pregnancy, even though it accommodated other drivers injured on the job or otherwise disabled, as well as drivers who temporarily lost DOT certification.  As a result, the Court remanded the case to the appellate court to determine whether pregnancy-blind policies tended to discriminate against pregnant workers despite their similar abilities (or inabilities) to work as non-pregnant workers.

The Court specially noted that 2008 ADA amendments expanded the definition and interpretation of “disability,” likely requiring an employer to provide accommodations to an employee with temporary lifting restrictions originating off the job (e.g., such as pregnancy and related conditions).

What This Means For Employers:

Frustration continues for U.S. companies as there is no “one size fits all” application of law to formation of employment policy and practices.

  • As we previously reported, as of January 1, 2015, Illinois Human Rights Act amendments require all Illinois employers to provide accommodations to pregnant employees, and those affected by conditions related to pregnancy (775 ILCS 5/2, et seq.).  Because federal employment discrimination law is instructive to Illinois’ administrative agencies, the Court’s ruling means that employers should evaluate their neutral leave and accommodation policies for potential of pregnancy discrimination.
  •  In all states, employers should ensure that they use a case-by-case evaluation of an employee’s medical- and pregnancy-related leave and accommodation requests.
  • Employers should engage in the ongoing, individualized interactive process with the employee to determine what, if any, accommodation can or must be made with the goal of reducing barriers to performing work.
  • Employers should also carefully evaluate their Workers Compensation Light Duty Programs immediately.

 

EEOC Issues Enforcement Guidance on the Pregnancy Discrimination Act

Contributed by Jill Cheskes

Recently, the U.S. Supreme Court granted certiorari to review a Fourth Circuit opinion holding that an employer did not violate the Pregnancy Discrimination Act (PDA) when it did not offer light duty to a pregnant employee, even though the employer had an established light duty program for certain categories of employees, including those injured on the job. Young v. United Parcel Service, Inc. The following week, the EEOC released enforcement guidance that takes an opposite position to that reached in Young. The guidance was not offered for public comment prior to being released.

The enforcement guidance outlines the EEOC’s position that an employer must offer pregnant employees the same benefits as it offers to employees with other medical-related conditions such as light duty, reasonable accommodations, modified tasks alternative assignments and leave. The EEOC’s position is that if non-pregnant employees are offered these options, an employer must also offer them to pregnant employees to be in compliance with the PDA; absent showing that the policy is job related and consistent with a business necessity. The EEOC also outlined that past, present and potential pregnancies are covered and can be the basis of pregnancy discrimination. Additionally, the EEOC acknowledged that pregnancy itself is not a disability, but it outlined that employers have obligations under the ADA to accommodate pregnant employees. The EEOC noted that many pregnancy-related impairments could be considered disabilities and thus entitled to accommodations.

The enforcement guidance is the first issued on the PDA since 1983. A fact sheet and Q&A were also issued. It is important to note that the EEOC’s enforcement guidance does not have the force of law and courts are not obligated to follow it. However, the EEOC will follow this enforcement guidance in cases argued before it. Note: If the Supreme Court upholds the Fourth Circuit’s opinion, which contradicts the guidance in certain respects, the guidance will be moot and of no significance, even before the EEOC.

Bottom Line: The EEOC enforcement guidance on the PDA attempts to quietly but significantly alter employer’s obligations to pregnant employees and employers should be cognizant of the guidance when making decisions related to pregnant employees and also when defending a pregnancy charge before the EEOC. As to the long-term implications of the enforcement guidance, the U.S. Supreme Court’s decision on Young will determine whether employers need to re-think its employment policies as it relates to pregnant employees or not. As previously reported, Illinois employers are reminded that Illinois law was recently amended to provide broad coverage and protections for pregnant employees.

Another Law Prohibiting Discrimination Against Pregnant Women

Contributed by Karuna Brunk

Members of the U.S. House of Representatives and the Senate have introduced bills to add workplace protections for pregnant women.  The bills are modeled on the Americans with Disabilities Act, which offers certain accommodation protections for employees with disabilities. 

The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, already protects pregnant women from employers discriminating against them through hiring, firing, pay, and job assignments.  Additionally, the Americans with Disabilities Act currently entitles pregnant women to some accommodations based on certain pregnancy-related impairments.

Despite these existing protections, sponsors of the Pregnant Workers Fairness Act argue that the new law would close legal loopholes for pregnant women.  The law would specifically require employers to offer reasonable accommodations for pregnant workers.  For example, employers may be required to offer seats for pregnant workers in standing jobs, put in place lifting restrictions for pregnant women, or give pregnant workers the right to carry water or food on the job site.  The law would also explicitly prohibit employers from refusing to hire or promote a pregnant worker based on her need for accommodation. 

As discussed above, Title VII already prohibits discrimination based on pregnancy, and the ADA offers pregnant workers certain protections.  Thus, regardless of the potential of a new law, employers should be mindful of the following:

  • Treat pregnant women the same as all workers in the workplace through the hiring, firing, and promotion process.
  • The EEOC considers pregnancy conditions as a type of temporary disability.  Therefore, you must provide pregnant workers with the same type of accommodations that you would provide other individuals with disabilities – if you would provide another worker with an accommodation for lifting because of a back injury, for example, you should provide a pregnant worker with a similar accommodation if necessary.  This also applies to leave requests. 
  • The Family Medical Leave Act also comes into play for pregnant employees – eligible pregnant workers may take FMLA leave.  Therefore, disciplinary, termination, and layoff decisions need to be carefully considered when they involve individuals who have exercised their rights under the FMLA to avoid potential allegations of discrimination, retaliation, or interference.   

Finally, because pregnancy discrimination issues can be complicated and span multiple laws, it is a good idea to consult an attorney to discuss strategies, discipline measures, and how to appropriately handle medical leave.