News & Insights

Pregnancy Discrimination – A Look at the Law and the Employer’s Obligations to Pregnant Workers
July 23, 2014
by Robert Conte

 

South Bend / Mishawaka, IN – The Pregnancy Discrimination Act, enacted in 1978 as an amendment to Title VII, prohibits discrimination on the basis of pregnancy, childbirth or any other pregnancy-related conditions. The act states that “women affected by pregnancy, childbirth or related medical conditions” must be treated the same “as other persons not so affected but similar in their ability or inability to work.” For employers, this means they must treat women affected by pregnancy-related conditions the same as all other applicants and employees as it pertains to their ability or inability to work and perform certain job-related functions. The Fair Labor Standards Act requires employers to provide reasonable, unpaid break time for non-exempt employee nursing mothers to express their milk. The Family & Medical Leave Act provides covered workers with a right to 12 weeks of job-protected unpaid leave for childbirth and bonding with a new child, among other reasons for such leave.

While pregnancy itself is not a disability under the Americans with Disabilities Act, pregnancy-related impairments, like gestational diabetes, would require an employer to look into providing reasonable accommodations, absent undue hardship, because such conditions may qualify as disabilities under the ADA if they substantially limit a major life activity.

As it relates to the PDA, the federal courts have come out both ways on the employer obligation to provide accommodations to pregnant employees. Some courts have held that it is permissible under the PDA to limit light duty assignments to employees with on-the-job injuries and not to provide the same light-duty work assignments to pregnant employees with compensable limitations in their ability to work. Other Courts have reached opposite conclusions, holding that a reasonable jury could conclude an employer’s refusal to accommodate restrictions arising from pregnancy while accommodating restrictions due to on-the-job injuries may equate to pregnancy discrimination.

Advocacy groups have argued that the PDA requires employers to provide the same accommodations to pregnant workers that they provide to other employees similar in their ability to work. The EEOC, in its recently issued guidance (July 14, 2014) provides a more expansive take on the employer’s obligations under the PDA by strongly encouraging the incorporation of a reasonable accommodation requirement in the text of the PDA statute.

Jumping on the pregnancy discrimination bandwagon are several state and local laws who have passed legislation clarifying employer responsibilities to provide accommodations to pregnant employees. The states of Illinois, New Jersey, West Virginia, Minnesota, New York City and Philadelphia have all passed laws that impose on employers the obligation to make “reasonable accommodations” for pregnant employees. Other states are looking seriously at also recognizing pregnancy discrimination as a distinct and protected form of discrimination.

Based on the rapid pace of changes in the area of pregnancy discrimination, we recommend that employers monitor the laws in their jurisdiction in an effort to stay ahead in this area. While doing so, it is advisable that employers review and revise their policies and practices as they relate to the treatment of women in the workplace to ensure compliance with these employment law developments.

The following points may be helpful:

  • Review leave and benefit policies and practices to determine whether pregnant workers with medical conditions are treated the same as non-pregnant workers.
  • Avoid singling out pregnancy related conditions for medical clearance procedures that are not required of non-pregnant employees. (i.e., submitting a doctor’s certificate concerning inability to work before granted medical or personal leave or paying leave benefits, the rules should apply to all employees).
  • Train your employees, including managers and supervisors, to thoroughly understand their responsibilities under the law.
  • Create an atmosphere that encourages discussions with any pregnant employee who requests an accommodation in the workplace.

– A pregnant woman should be allowed to continue in her position provided she is able to perform the essential functions of the job.

  • Always follow applicable federal, state and local laws regarding accommodation.

The laws and times are changing and we must change with them. By being proactive in the PDA area, an employer will minimize its legal employment law risks while at the same time, creating a more productive and claim free work environment.

This article is for general information purposes only and is not intended to be and should not be taken as legal advice. When PDA issues arise in your workplace, a call to an experienced Employment attorney is recommended.

References Sources: Law 360, EEOC Pregnancy Bias Guidance May Tee Up High Court Clash, July 14, 2014 and States Cracking Down on Pregnancy Discrimination, Celina R. Joachim, Douglas Darch and Georgia A. Jolink, Baker & McKenzie, LLP, July 15, 2014.

 

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