New Federal Guidelines Protect Pregnant Employees

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NEW YORK—In its first major update of Equal Employment Opportunity Commission (EEOC) guidance on pregnancy discrimination since 1983, on July 14, 2014 the agency added provisions explaining when the Pregnancy Discrimination Act (PDA) and Americans with Disabilities Act (ADA) might require reasonable accommodations for workers with pregnancy-related disabilities or work restrictions.

Commissioner Victoria Lipnic voted against the newly revised guidance, saying it “takes the novel position that under the language of the PDA, a pregnant worker is, as a practical matter, entitled to ‘reasonable accommodation’ as that term is defined by the ADA. No federal court of appeals has adopted this position; indeed, those which have addressed the question have rejected it.”

She noted the Supreme Court next term will decide to what extent a pregnant employee must be reasonably accommodated and called the timing of the revised guidance poor, given that the Supreme Court’s decision might moot it.

Many of the ideas in the revised guidance shed light on the commission’s thoughts about what constitutes reasonable accommodation under the ADA and could be instituted without undue hardship.

While Lipnic did not buy the argument that the ADA Amendments Act, effective in 2009, expanded the “disability” definition to encompass many pregnancy-related impairments, the extent to which it expanded the reach of “disability” to include pregnancy-related impairments is one that will be litigated in the courts for years to come.

Regardless, under the current guidance, Scott Fanning, an attorney with Fisher & Phillips in Chicago, said employers should be “cautious with pregnant employees. Treat them as you would anyone else.” He noted that under the guidance in terms of accommodations, pregnant employees with disabilities (which arguably might even include morning sickness or high blood pressure) have the same accommodation rights that any other individuals with disabilities would have.

That said, he noted that while some courts will follow the guidance, no court must.

Reasonable Accommodations
The guidance did not seem to anticipate the “public controversy” Lipnic thought it is likely to engender.
Instead, it listed reasonable accommodations a pregnant worker with disabilities might need, such as:

• Redistributing marginal or nonessential functions (such as lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed.
• Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited.
• Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time.
• Allowing a pregnant worker placed on bed rest to telework where feasible.
• Granting leave in addition to what an employer would normally provide under a sick leave policy.
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing.
• Temporarily reassigning an employee to a light-duty position.
Best Practices
In addition, the guidance listed best practices in providing reasonable accommodations for pregnant workers, such as:
• Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities, and for granting accommodations where appropriate.
• State explicitly in any written reasonable accommodation policy that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
• Make any written reasonable accommodation procedures an employer may have widely available to all employees, and periodically remind them that the employer will reasonably accommodate employees with disabilities who need them, absent undue hardship.
• Train managers to recognize requests for reasonable accommodations, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.
• Make sure that anyone designated to handle requests for reasonable accommodations knows that the definition of the term “disability” is broad and that employees requesting accommodations, including employees with pregnancy-related impairments, should not be required to submit more than reasonable documentation to establish that they have covered disabilities.
• If a particular accommodation requested by an employee cannot be provided, explain why and offer to discuss the possibility of providing an alternative accommodation.

Pregnancy-Related Discussions
Lipnic also took issue with what she described as “the tone the guidance takes with respect to pregnancy-related inquiries or discussion in the workplace, which I fear will have the counterproductive result of making workplace accommodation of routine pregnancies more complicated for employers, and—far more troubling to me—less accessible and available to pregnant workers."

Lipnic noted that “the guidance references comments or discussion of pregnancy, or its impact on a pregnant worker’s ability to perform her duties, as evidence of discrimination.

“I am deeply concerned that the effect of the pregnancy guidance will be to cause employers to not do exactly what should be done where an employee informs her employer that she is pregnant. It is my view that when a supervisor or manager learns of an employee’s pregnancy, it is entirely appropriate to begin a conversation with the employee about her anticipated plans, schedule, workload and assignments, so as to develop a plan to address the employee’s needs and schedule, while ensuring that necessary work is completed, transitioned or shifted as appropriate, and the like,” she added.

“Suggesting, as the guidance essentially does, that employers adopt a ‘code of silence’ with respect to pregnancy is not appropriate or realistic, and in my view works a disservice to both the company and the pregnant worker.”

New federal guidelines on job discrimination against pregnant workers could have a big impact on the workplace and in the courtroom.

The expanded rules adopted by the bipartisan Equal Employment Opportunity Commission make clear that any form of workplace discrimination or harassment against pregnant workers by employers is a form of sex discrimination—and is illegal.

Updating its pregnancy discrimination guidelines for the first time in more than 30 years, the agency cited a "persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices."
The guidelines spell out for the first time how the Americans With Disabilities Act applies to pregnant workers. And they emphasize that any discrimination against female workers based on past or prospective future pregnancies is also illegal.

Joan C. Williams, a law professor at the University of California's Hastings School of Law in San Francisco, said the new guidelines issued this week can have two major impacts: steering EEOC investigators to be more sensitive to the sometimes special needs of pregnant workers and giving employment lawyers more ammunition in defending clients who were victims of such discrimination.

Williams, an expert in the field whose work is cited three times in the EEOC's new 60-page "enforcement guidance" on pregnancy discrimination, called the toughened stance of the EEOC "a significant victory."

Williams, who co-authored a 2011 study called "Pregnant, Poor and Fired," said the main impact may be erecting "very, very, simple and very, very commonsense" guideposts for EEOC investigators, as well as providing strong ammunition for employment lawyers whose clients are victims of such discrimination.

"I think it will make a really big difference," she said in an interview. "This is also the direction the courts have begun to go in, and that's why the EEOC said, 'Yeah, that makes sense.'"

The guidelines were last updated in 1983. EEOC Chairwoman Jacqueline A. Berrien suggested the update was needed and timely. "Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices," she said in a statement.

The new guidelines prohibit employers from forcing pregnant workers to take leave and acknowledge that "employers may have to provide light duty for pregnant workers." After childbirth, lactation is now covered as a pregnancy-related medical condition.

It's not just women who will benefit. The guidelines say that when it comes to parental leave, "similarly situated" men and women must be treated on the same terms.

The update comes two weeks after the Supreme Court agreed to consider a case involving the EEOC's duty to try to settle charges of job discrimination before filing lawsuits against employers.

The issue has gained increasing attention—and vexed business groups—as the Obama administration ratchets up its enforcement of the nation's anti-discrimination laws.

The latest EEOC data shows a 46 percent increase in pregnancy-related complaints to the EEOC from 1997 to 2011.
In its report, the agency cites specific, real-life examples of what it considers illegal discrimination. It used only first names and did not reveal locations, occupations or employers. Among them:

Three months after "Maria" told her supervisor that she was pregnant, she was absent a few days due to an illness unrelated to her pregnancy. When she returned to work, "her supervisor said her body was trying to tell her something" and she was let go.

Shortly after Teresa informed her supervisor of her pregnancy, "he met with her to discuss alleged performance problems." Even though Teresa had consistently received outstanding performance reviews during her eight years of employment with the company, she was discharged.

Birah, a woman from Nigeria, claimed that when she was visibly pregnant with her second child, "her supervisors increased her workload and shortened her deadlines so she could not complete her assignments, ostracized her, repeatedly excluded her from meetings to which she should have been invited, reprimanded her for failing to show up for work due to snow when others were not reprimanded, and subjected her to profanity."

Protections for pregnant women vary widely around the globe—as does enforcement. Sweden bans discrimination because of pregnancy and requires companies employing more than 25 people to help both men and women combine work and parenting. Egyptian laws give pregnant women the right to work fewer hours and provides three months' paid leave after birth—requirements women's rights groups say prompt employers to hire men. And in Mexico, laws prohibit discrimination against pregnant women, but there is little enforcement by the government.

The American Civil Liberties Union welcomed the updated U.S. guidelines, which were approved Monday on a 3-2 partisan-line vote by the Democratic-led commission.

"Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers," said Laura W. Murphy, director of the ACLU's Washington Legislative Office.