March, 2015

What is it with Pregnancy?

Pregnant employees, as a protected class, are having their moment in the sun.  The United States Supreme Court just held in Young v. United Parcel Service, Inc. that pregnant employees may be legally entitled to accommodation of their pregnancy-related work limitations, even if those limitations do not meet the threshold of a legally-recognized “disability”.  Also, for the first time in 25 years, the Equal Employment Opportunity Commission updated its Enforcement Guidance on Pregnancy Discrimination in July 2014 to declare that pregnant employees should receive the same types of accommodations, for example modified tasks, alternative assignments, or leave, as an employer accords to disabled employees who have requested a reasonable accommodation.

As I discussed earlier this year, in 3 Hyper-Local Laws Employers Can’t Afford to Ignore, various states and municipalities (including New York City) have recently passed laws providing enhanced protection to pregnant employees.  Bills offering similar protections are pending in other state legislatures.

Also anecdotally, I have seen an uptick in calls concerning treatment of pregnant employees.  The issues are varied, with employers most typically asking for how long they need to accommodate leave following childbirth and under what terms.  Individual employees are seeking to understand their legal rights, based on reports that they have been forced into alternative roles or demoted immediately preceding or following maternity leave, or pushed out the door entirely, for example, when they requested accommodation of a pregnancy-related travel restriction.

Tread These Waters Carefully

Pregnancy discrimination protection is not limited to the months an employee is actually pregnant, according to the EEOC.  Rather, it also covers

  • women who are attempting to become pregnant,
  • women recently recovered from childbirth, and
  • nursing mothers.

Legal protections concerning pregnancy discrimination are currently evolving.  The EEOC is reevaluating its recent Guidance and will need to make some revisions based on the Supreme Court’s latest decision in Young, which rejected a most-favored-nation type of notion that a pregnant employee should be entitled to the same accommodations for workplace disabilities caused by pregnancy that are provided to employees with workplace disabilities caused by other factors with a similar effect on the ability to work.

Where does that leave employers?  With some uncertainty, but also some guideposts as to appropriate action.

The Bottom Line

Clearly an employer cannot refuse to hire, fire, demote or take similar adverse action against an employee/applicant simply because she is pregnant.  That was the law prior to the recent EEOC Guidance and Supreme Court pronouncements, and it remains unchanged.

When an employee requests an adjustment in her work schedule or responsibilities due to a pregnancy-related limitation (including time off or an adjusted work schedule either for an employee who is trying to become pregnant or for a nursing mother who is ramping back up to her regular work schedule after childbirth):

  • Ask for medical documentation;
  • Seriously consider the request, relative to your business needs; and
  • Evaluate any facially-neutral policy you have that would preclude the requested adjustment/accommodation (such as a policy limiting accommodations only to those who meet the legal definition of disability). Ask:
    • Is there a business purpose for the limitation, beyond the fact that you were only making an accommodation where you understood such was legally required?
    • Have there been instances (and how frequent) in which you applied the policy to deny a non-pregnant employee requesting a similar accommodation?
    • Have you ever made exceptions to your policy for other employees, and in what circumstances?

If your business can support it, erring on the side of granting documented requests for a pregnancy-related accommodation will help you mitigate your litigation risk.  And if you are uncertain how to proceed, seek legal counsel.

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