Pregnancy Discrimination and Accommodation
With women making up more than half of today's workforce, a significant number of employees and applicants are pregnant women as well as mothers returning to work after childbirth. Under federal, state and municipal laws, women affected by pregnancy, childbirth or related medical conditions are entitled to protection from discrimination, harassment and retaliation. In fact, states and municipalities often provide additional rights and protections beyond federal law. Further, employers often will have to grapple with providing reasonable accommodations or leave before or after a child is born. Additionally, employers may have additional requirements under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), or other state or local laws. Thus, an employer needs to determine what laws apply based on its size and location.
The following are key steps an employer can take to effectively manage pregnant employees and minimize the risk of liability.
1. Make Sure Policies and Posters Address Pregnant Employees
Policies and posters should comply with federal, state and local laws prohibiting pregnancy discrimination. An employer should maintain EEO policies specifically making pregnancy a protected class and prohibiting discrimination, harassment and retaliation. Further, an employer may maintain a reasonable accommodation policy addressing accommodations for pregnant employees. An employer may implement a maternity leave policy and offer additional benefits to pregnant employees beyond what is legally required. All relevant policies should be included in an employee handbook and available on any internal website. An employer must comply with posting requirements and post notice of employees' pregnancy rights. Additionally, an employer should make sure that any workplace policies do not discriminate against pregnant employees and result in an unintended adverse impact.
2. Train Supervisors
It is important to train supervisors on managing pregnant employees and preventing discrimination. This includes responding to pregnancy news in a positive manner; assisting employers in monitoring pregnancy and work performance; and evaluating if any adjustments need to be made to an employee's duties and responsibilities. An employer should document if a pregnant employee needs to be counseled, disciplined or terminated for unrelated reasons. Further, the supervisor should arrange with the employee regarding coverage if and when the employee goes out for pregnancy-related reasons or childbirth. The supervisor should also attempt to speak with the employee regarding her return to work.
3. Provide Reasonable Accommodations
A pregnant individual may be entitled to reasonable accommodations under federal, state or municipal law. On the federal level, if an individual experiences pregnancy- related impairments (e.g., preeclampsia, gestational diabetes, back pain) that substantially limit the employee's ability to perform a major life activity (e.g., walking, standing, lifting), the individual may be entitled to reasonable accommodations pursuant to the American with Disabilities Act, such as additional breaks, a modified work schedule, additional leave, temporary reassignment, telecommuting and redistribution of workplace tasks. Once an employer is on notice that the individual suffers from a pregnancy-related disability and needs an accommodation, the employer is required to engage in the interactive process or a good-faith discussion with the employee regarding the requested accommodation and whether the employer can provide it. In doing so, the employer may request additional information supporting the need for accommodation. State and municipal requirements may go beyond federal law and impose greater restrictions on employers.
4. Treat Pregnant Employees the Same as Other Temporarily Disabled Employees
Under federal law, an employer is required to treat the employee in the same manner as it treats any other employee who also suffers from a temporary disability with respect to:
- Light duty;
- Alternative assignments;
- Disability leave; or
- Unpaid leave.
Thus, an employer should assess all policies regarding accommodations and light duty, and consider how those policies affect and are applied to pregnant workers.
5. Keep Adequate Records
An employer should maintain meticulous records with respect to an employee's pregnancy for various purposes. An employer should record the date it knew or should have known of the employee's pregnancy in the personnel file. Additionally, an employer should keep detailed records of leave and any reasonable accommodations provided or modifications made. All correspondence with an employee regarding pregnancy or impending leave should be saved and filed. The employer should exercise care to ensure that any medical records are kept confidential and secure.
6. Remember That Pregnant Employees May Be Entitled to Leave Under Various Laws
An employer should be receptive to a pregnant employee's request for a leave of absence as, depending on the circumstances, an employee may be entitled to leave under various laws including:
- The federal Americans with Disabilities Act;
- The federal Family and Medical Leave Act;
- State family and medical leave acts;
- State pregnancy disability leave laws;
- State temporary leave insurance laws; or
- Municipal ordinances addressing pregnancy accommodations.
However, an employer should keep in mind that it may not discriminate against an employee based on a leave request. An employer also may not require a pregnant employee to take leave from her job for pregnancy-related reasons as long as she can perform her job (even if the employer believes it is acting in the employee's best interest). Further, an employer may not require an employee on leave for a pregnancy-related condition to remain on leave until childbirth, or to prohibit an employee from returning to work for a certain length of time after giving birth.
7. Follow Up on Complaints
Employers must be responsive to any complaints regarding pregnancy discrimination, harassment or retaliation. Once on notice or in receipt of a complaint of discrimination, harassment or retaliation based on pregnancy, the employer should initiate an investigation; interview relevant parties and witnesses; and attempt to gather any evidence. An employer should impose interim measures if necessary and should not hesitate to impose discipline if allegations are proven.