New rules mean more protection for pregnant workers

There has been a lot of talk lately about a relatively obscure case that spurred the U.S. Equal Employment Opportunity Commission (EEOC) to issue a new set of guidelines on how employers must accommodate their pregnant employees.

The impact is far-reaching, as the EEOC is linking the temporary condition of pregnancy to a legal principle usually associated with the Americans with Disabilities Act (ADA), which rewrote the rules of access in both the workplace and society as they relate to accommodating people with disabilities.

While the changes here stop short of equating pregnancy with disability under the law, the EEOC is pushing employers to extend the "reasonable accommodation" model of the ADA as a means of preventing and/or decreasing complaints of unlawful pregnancy discrimination in the workplace.

Focusing my practice at Scaringi Law on civil litigation, employment law and unemployment compensation, I have seen many a landmark employment case lead to sweeping legal changes in the workplace. But none has taken such a circuitous route to altering how employers must deal with their pregnant employees as this latest guidance by the EEOC.

It makes for both an interesting and informative tale, as follows:

The case empowering pregnant employees

The old adages that "no good deed goes unpunished" and "the wheels of justice turn slowly" surely apply to the long and winding story of the legal issues surrounding pregnancy in the workplace. The recent employer guideline changes by the EEOC can be traced to a 1991 U.S. Supreme Court case, "International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc."

The court ruled that a policy designed to protect pregnant women from harm in the workplace was, in fact, discriminatory on its face on the basis of gender. Flash forward some 23 years, and the EEOC is only now updating its guidance to employers stemming from the decision.

On July 14, 2014, the EEOC issued its "Enforcement Guidance on Pregnancy Discrimination and Related Issues." The guidance gives employers dos and don'ts on various issues that could arise under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act.

Under the law, pregnancy discrimination is considered a form of sex discrimination. In its new guidelines, the EEOC zeroed in on the most common complaints of pregnancy discrimination: employees being terminated because they're pregnant; unequal treatment due to pregnancy (such as closer scrutiny or harsher discipline); suspensions or harsher discipline for failure to provide medical excuses for time off for prenatal care; and forced leave for pregnant employees.

Even though pregnancy is not a "disability" under the Americans with Disabilities Act, the federal Pregnancy Discrimination Act borrows the ADA's legal requirements on the part of employers to provide pregnant employees with "reasonable accommodations" in the workplace during their pregnancy.

Specifically, the EEOC guidance directs that "An employer must treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees who are similarly temporarily unable to perform their jobs."

Such accommodations may include assigning modified tasks, alternative assignments, leave and/or fringe benefits, among other things.

The EEOC guidelines also put employers on notice that they must be proactive and positive ─ never punitive ─ when it comes to dealing with their pregnant employees.

The impact on pregnancy discrimination litigation

So if you're pregnant, how do you know if you've been discriminated against by your employer?

If you are an employer, what must you do in order to remain on the right side of the law?

The bottom line is that if one employee is determined to be "disabled" under the ADA, a pregnant co-worker with the same limitations can't be treated any differently and must be given the same reasonable accommodation(s) as the "disabled" employee for the entire time she is limited by her pregnancy.

A pregnant worker can also demonstrate pregnancy discrimination simply by showing that she was denied a light-duty assignment that was granted to a similarly situated "disabled" co-worker, assuming the employees were doing the same or similar work.

Here are some other dos and don'ts offered up under the new EEOC guidance on pregnancy discrimination:

· The EEOC will presume pregnancy discrimination where an employer takes adverse employment action with knowledge that an applicant or employee is pregnant.

· Employer policies that are consistently applied will assist an employer in demonstrating non-discrimination. In other words, uniformity in treatment of pregnant and non-pregnant but otherwise "disabled" employees.

· Discrimination can also be found due to lactation and breastfeeding, if lactating and breastfeeding employees are not given the same consideration and treated the same as similarly situated "disabled" employees.

· Termination due to contemplating or having an abortion is protected against as unlawful discrimination.

· Employers must also be aware of and comply with other sources of protection for pregnant workers in the workplace, including the Family and Medical Leave Act; Executive Order 13152, protecting parents from discrimination by federal contractors; state and territorial "Break Time for Nursing Mothers" laws; and general state anti-discrimination and/or pregnancy discrimination laws.

· Employers cannot deny or restrict assignments of women to light duty solely based on the employee being pregnant.

Respecting workplace rights is good business

The EEOC guidance on pregnancy discrimination in the workplace has been a long time in coming. It's well worth an employer's time to revisit workplace policies. Remember, should an issue arise, being able to show a good-faith attempt to adhere to the law will go a long way toward insulating a company from allegations of pregnancy discrimination.

As I am well-versed in these changes - along with the nuisance of state and federal laws protecting employees, including the special protections afforded to federal employees - I remain available to assist employers looking to fully comply with the law, as well as to help employees who believe their rights have been violated.

After all, everyone profits when workplace rights are universally understood, respected and fully protected.


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