"Bumpy" Road Ahead: A Prudent Employer's Guide to Pregnancy Discrimination Laws

Author: Beth P. Zoller, XpertHR Legal Editor

When an employee announces her pregnancy, a prudent employer should proceed cautiously because a bumpy road lies ahead as legislators and policymakers at the state and federal level push for greater protection for pregnant employees. In fact, some states have already passed legislation that goes beyond federal requirements.

Federal Pregnancy Protections

The federal Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against pregnant employees, but it does not currently require employers to accommodate them. It guarantees pregnant women equal, but not preferential, treatment in the workplace.

This notion was recently reinforced by the 4th Circuit Court of Appeals, which held that the PDA did not require an employer to provide a pregnant employee with a special accommodation. See Young v. United Parcel Service, Inc., +2013 U.S. App. LEXIS 530 (4th Cir. Jan. 9, 2013). In this case, the employer denied an employee's request for light duty work when she was unable to lift heavy packages due to her pregnancy. In court, the employee argued that this accommodation was reasonable because the same accommodation was provided to nonpregnant workers with a disability and others who suffered job-related injuries. The court disagreed and determined that the employee received the same treatment as employees who were unable to lift as a result of a nonwork injury or illness, but were not disabled under the Americans with Disabilities Act (ADA). As a pregnant worker, she was not automatically entitled to an accommodation based solely on her pregnancy.

This may change, however, as Congress introduced the Pregnant Workers Fairness Act in 2012, S. 3565 and H.R. 5647. The proposed law would enhance the PDA and require employers to reasonably accommodate pregnant employees or job applicants, as well as those limited by childbirth or related medical conditions, unless the employer can show an undue hardship, such as a significant difficulty or expense. Reasonable accommodations could include providing a stool to sit on or reassigning heavy lifting. The proposed law would also prohibit employers from terminating employees or taking other adverse action against based on pregnancy or the taking of leave for pregnancy-related reasons.

Employers should also be aware that the Equal Employment Opportunity Commission (EEOC) has vowed to make accommodating pregnancy-related limitations under the ADA Amendments Act (ADAAA) and the PDA one of its strategic enforcement priorities over the next few years, as well as focus on eliminating pregnancy and caregiver discrimination. In 2012, the EEOC received 3,745 charges of pregnancy discrimination.

By way of example, in a 2013 EEOC settlement, an employer agreed to pay $20,000 for removing a pregnant employee from the schedule, terminating her without warning and without prior disciplinary action, and telling her "the baby is taking its toll on you," despite the fact that she had not cut back her shifts and had no medical or working restrictions. See Equal Employment Opportunity Commission v. Reed Pierce, No. 3:10-CV-00540 (S.D. Miss. 2013). As part of the settlement, the employer must also:

Implement new policies and practices to prevent pregnancy discrimination;
Provide management with antidiscrimination training;
Post employee notices in the workplace; and
Report all pregnancy discrimination complaints to the EEOC.

State Laws Passed

Several states already have laws in place that provide workers with greater protection than the PDA.

In 2012, California expanded the Fair Employment and Housing Act (FEHA), which now requires that employers provide reasonable accommodations to an employee suffering from a health condition related to her pregnancy, childbirth or related condition if such a request is made with the advice of her health care provider. An employer must transfer a pregnant employee to a less strenuous or hazardous position if the employee requests the transfer, it is supported by a physician's advice and the transfer can be reasonably accommodated.

Similarly, new pregnancy disability regulations took effect in California that require covered employers to provide up to four months of unpaid leave for pregnancy-related reasons. The regulations also clarify an employer's obligation to provide a reasonable accommodation or transfer when a woman is affected by pregnancy, childbirth or related medical conditions. In fact, a California Appellate Court recently held that once an employee exhausts the four months of pregnancy disability leave under the regulations, under certain circumstances, the employer may be required to grant her additional time off as a reasonable accommodation. See Sanchez v. Swissport, Inc., +2013 Cal. App. LEXIS 131 (Cal. Ct. App. Feb. 21, 2013).

In Illinois, pregnancy discrimination is a form of sex discrimination prohibited by the Illinois Human Rights Act. A pregnancy-related disability is treated like any other covered temporary disability. Policies including such things as mandatory maternity leave should be avoided.

Louisiana law prohibits an employer from discriminating against pregnant employees or employees with medical conditions related to pregnancy. It affords pregnant employees preferential treatment and requires employers to transfer a pregnant employee to a less strenuous or hazardous position for the duration of her pregnancy, if the employee so requests.

In Hawaii, pregnant employees may not be excluded from work due to their pregnancy and are entitled to reasonable accommodation if their pregnancy affects their ability to perform their duties. Individuals disabled by pregnancy, childbirth or related medical conditions are also entitled to preferential treatment, including leaves of absence, full service credits and privileges (benefits) during the period of their absence, and guaranteed reinstatement to their original position or a comparable position.

States such as Alaska, Connecticut and Texas have enacted similar legislation protecting pregnant women.

State Laws Introduced

Several state law changes are also on the horizon.

Florida lawmakers recently proposed the Protect Our Women Act, which would:

Make discrimination against pregnant employees a form of unlawful sex discrimination;
Clearly prohibit employers from discriminating against an individual with regard to issues surrounding pregnancy, childbirth or any related conditions;
Require employers to treat women affected by medical conditions related to pregnancy or childbirth the same as individuals with medical conditions unrelated to pregnancy or childbirth for all employment-related purposes, including the receipt of benefits; and
Allow victims of pregnancy discrimination to obtain compensatory and punitive damages.

+2013 Bill Text FL H.B. 717; +2013 Bill Tracking FL H.B. 717; +2013 Bill Text FL S.B. 774; +2013 Bill Tracking FL S.B. 774.

Similarly, New York Governor Andrew Cuomo announced plans in January 2013 to enact a 10-Point Women's Equality Act to eliminate sex discrimination and inequality. As part of the plan, Governor Cuomo seeks to enact measures to end pregnancy discrimination and require employers to provide pregnant women with reasonable accommodations, unless doing so would create an undue hardship, as well as end sexual harassment, wage discrimination and family status discrimination against women, among other things. Following this, New York lawmakers introduced legislation in the House and the Senate regarding providing reasonable accommodations to pregnant women. +2013 Bill Text NY A.B. 1264; +2013 Bill Text NY S.B. 1479.

Likewise, Maryland (+2013 Bill Text MD H.B. 804; +2013 Bill Text MD H.B. 1334; +2013 Bill Text MD S.B. 784) and Minnesota (+2013 Bill Text MN H.B. 463; +2013 Bill Text MN S.B. 409) have recently introduced similar legislation regarding reasonable accommodations for pregnant women.

Advice for Employers

Employers should continue to watch out for any legislative changes, as this is a rapidly evolving and emerging area of the law.

In light of such legislative developments and policy proposals, it is important for employers to recognize the needs and concerns of pregnant employees. An employer should implement and enforce policies that strictly prohibit discrimination against pregnant women and provide them with equal treatment. It is critical to provide training to all supervisors and managers on how to handle pregnant employees. Moreover, an employer should immediately respond to pregnancy discrimination complaints, fully investigate the allegations and follow up with remedial measures.

Even if their state does not require it, employers may choose to voluntarily provide reasonable accommodations to pregnant women, including light duty work, transfer to a less strenuous position, reduced hours, time off for doctor's appointments, permitting employees on bed rest to telecommute or granting additional leave. Employers should carefully evaluate each request on a case-by-case basis in order to not lose or turn away valuable employees.