pregnancy in the workplace: recent developments in the law

Jackson Lewis P.C. - Copyright 2015

Tammy L. Baker

[email protected]

Kimberly R. Ward

[email protected]


What are We Going to Cover?

Relevant Timeline

PDA Basics

Recent PDA Developments

– EEOC Guidance (July 2014 & June 2015)

– Young v. UPS (March 2015)

What’s Next?

Best Practices

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Relevant Timeline

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1973Rehab Act

1983EEOC PDA

Compliance

2014 PDA Guidance

1978PDA

1990ADA

2008 ADAAA

1993FMLA

2015Young v.

UPS


PDA Basics

Applies to employers with 15 or more employees

Amended Title VII to prohibit sex discrimination on the basisof pregnancy

“The terms “because of sex” or “on the basis of sex” include,but are not limited to, because of or on the basis ofpregnancy, childbirth, or related medical conditions”

“Women affected by pregnancy, childbirth, or relatedmedical conditions shall be treated the same for allemployment-related purposes, including receipt of benefitsunder fringe benefit programs, as other persons not soaffected but similar in their ability or inability to work”

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Protected Classes Under PDA

Current pregnancy.

Past pregnancy.

Potential or intended pregnancy:

– Reproductive risk;

– Intention to become pregnant;

– Fertility treatment;

– Use of contraception.

Medical condition related to pregnancy or childbirth:

– Lactation and breastfeeding;

– Abortion.

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PDA Basics

Generally, two types of claims under the PDA:

(1) Disparate Treatment: The employee is intentionally

subjected to adverse employment action or harassmentbased on the employee’s pregnancy.

Example: discharge, demotion, harassment

(2) Disparate Impact: The employer has a policy or

practice which is neutral toward pregnant employees on its face but in practice has a greater statistical impact on the protected class (here, pregnant employees)

Example: minimum lifting/pushing/pulling requirement

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PDA Basics

In 1983, the EEOC issued PDA guidance in a chapter of itsCompliance Manual

– That guidance instructed that pregnant employees had no right to“light duty” if the employer reserved light duty only for on-the-jobinjuries

For the next 30 years, the EEOC issued no comprehensiveupdate to this original guidance.

Now, the PDA is a primary area of focus for the EEOC and ahot bed for employment lawsuits.

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Major PDA Developments Since 2014

July 2014: EEOC releases revised enforcement guidance onpregnancy discrimination

• Pregnancy-related temporary impairments aredisabilities under ADA

• Lactation is a medical condition that must beaccommodated along with breastfeeding

• Prohibition on forced maternity leave

• Men should be afforded equitable maternity leave rightsto women

• Light duty may be a reasonable accommodation whereavailable, regardless of whether the employer hasreserved it for on-the-job injuries

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Major PDA DevelopmentsSince 2014

March 25, 2015: U.S. Supreme Court decides Young v.UPS

– Pregnant employee challenges denial of light duty asdisparate treatment under the PDA

June 2015: EEOC revises enforcement guidance in light ofYoung

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Young v. UPS135 S. Ct. 1338 (2015)

In 2006 Young, a part-time UPS driver, became pregnant after suffering several miscarriages. Her physician instructed her not to lift more than 20 pounds during first 20 weeks of pregnancy and no more than 10 pounds thereafter.

UPS required drivers to be able to lift parcels up to 70 pounds independently and up to 150 pounds with assistance. UPS told Young she could not work while under a lifting restriction and that she would have to take leave.

Young stayed home without pay for most of time she was pregnant and eventually lost medical coverage.

Young filed suit, claiming UPS acted unlawfully by not accommodating her lifting restrictions while accommodating other drivers who were “similar in their … inability to work.”

UPS claimed that their accommodation policy was neutral and was limited only to employees who experienced on-the-job injuries; who had lost their DOT certifications; or who suffered from an ADA-covered disability.

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Young v. UPS

Supreme Court rejected the EEOC’s view, holding that thePDA does not require employers to grant pregnant workers“an unconditional most-favored-nation status”

“[D]isparate treatment law normally permits an employerto implement policies that are not intended to harmmembers of a protected class, even if their implementationsometimes harms those members, as long as the employerhas a legitimate, nondiscriminatory, nonpretextual reasonfor doing so.”

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Supreme Court Rejects EEOC Guidance

Concerns regarding the “timing, consistency and thoroughness of consideration” severely limit the EEOC guidance’s “special power to persuade.”

The guidelines were not promulgated until after the Court had granted certiorari in Young and are inconsistent with positions for which the government had long advocated.

“Without further explanation, we cannot rely significantly on the EEOC’s determination.”

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Supreme Court Clarifies Disparate Treatment Analysis Under the PDA

Pregnancy discrimination is a form of sex/gender discrimination and the McDonnell Douglas/Burdine framework applies.

Employee must first establish prima facie case:

1. She belongs to the protected class (i.e. she is pregnant);

2. She sought accommodation;

3. The employer did not accommodate her; and

4. The employer did accommodate others “similar in their ability or inability to work.”

Employer must then provide a legitimate, nondiscriminatory explanation for denying the accommodation.

– Expense or inconvenience in accommodating a pregnant employee on similar terms as anon-pregnant employee normally is not a legitimate, non-discriminatory reason (compare tothe ADA, where expense may constitute a legitimate reason for offering a differentaccommodation, or no accommodation at all)

Employee must then establish an issue of material fact as to whether the asserted reason is pretext.

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Pretext may be established by presenting– (1) significant evidence that a facially neutral policy

imposes a “significant burden” on pregnant employees

– (2) the employer’s legitimate, nondiscriminatory reasons are not “sufficiently strong” to justify the burden

Example: The employer accommodated a large percentage of non-pregnant employees without accommodating a large percentage of pregnant employees

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Young focused on comparators more than permissible leavepolicies

Is ability/inability to work the only relevant basis forcomparison? Must other similarities between pregnantemployees and “other persons” be considered?

The PDA’s comparison of “other persons” does not meanpregnant employees are entitled to the sameaccommodation as any single other person who is similar inability or inability to work

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Post-Young Events

Case remanded back to Fourth Circuit Court of Appeals

– Supreme Court instructed that Young had established a primafacie case because UPS had three categories of leave thataccommodated a large percentage of non-pregnant employeesbut were unavailable to pregnant employees, thereby creatingmaterial issue as to whether it treated non-pregnantemployees more favorably

EEOC re-revised pregnancy guidance (June 2015)

– Reiterated its 2014 guidance while embracing the analysis set forth inYoung

UPS and Young reached settlement (Sept. 2015)

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Disparate Treatment Violations of the PDA

Employment decisions based on:

– assumptions or stereotypes regarding pregnant employee.

– concerns regarding safety of unborn baby or future fertility (except if BFOQ).

– risk that employee will take leave earlier than anticipated.

– employee announces she is or intends to become pregnant.

– employee’s decision to have or refrain from having an abortion.

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Examples of DisparateTreatment Violations of the PDA

Failing to provide nursing mothers to address lactation-related needs (expressing milk) as co-workers with other limiting medical conditions.

Penalizing women for taking time off work for surgical impregnation.

Permitting hostile work environment.

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Benefits-Related Disparate TreatmentViolations of the PDA

Failing to provide insurance coverage for abortion if employee’s life is in danger - carried to term or abortion complications.

Excluding insurance coverage for particular fertility treatments.

Failing to provide prescription contraceptives, if plan covers other prescription drugs.

Failing to credit medical leave the same re: service time for pension plans.

Adverse action to avoid insurance costs re: pregnancy-related impairment of the employee or child.

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Potential Disparate ImpactViolations

Leave/attendance policy with caps or eligibility requirements with disparate impact on pregnant employees.

Limits on light-duty assignments.

Lifting requirements.

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Reasonable AccommodationObligation under the PDA?

Although pregnancy itself is not an impairment within the meaning of the ADA, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.

A pregnant employee may be entitled to reasonable accommodation under the ADA for limitations resulting from pregnancy related conditions.

An impairment’s cause is not relevant in determining whether the impairment is a disability.

Distinctions based on the source of the inability (source discrimination) is pregnancy discrimination.

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These Conditions May Be Disabilities

Disorders of the uterus and cervix.

Multiple combined physiological impairments.

Anemia.

Gestational diabetes.

Nausea causing severe dehydration.

Abnormal heart rhythms.

Depression affecting brain function.

Common conditions - back pain, leg swelling, and carpal tunnel.

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Super-Protected Class?

Example - Employer Does Not Provide Equal Access toLight Duty

“An employer has a policy or practice of providing light duty,subject to availability, for any employee who cannot performone or more job duties for up to 90 days due to an injury,illness, or a condition that would be a disability under theADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. Theemployer denies the light duty request, claiming thatpregnancy itself does not constitute an injury, illness, ordisability and that the employee has not provided anyevidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA.The employer has violated the PDA because the employer’spolicy treats pregnant employees differently from otheremployees similar in their ability or inability to work.”

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Light Duty for Pregnant Employees?

Light duty policies limited to WC or disabled employees violate the PDA.

Caps on the number or duration of light duty jobs OK if consistently applied & do not impose a disparate impact on pregnant employees.

Other prerequisites (written request) for light duty are OK.

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EEOC’s Suggested ADA Accommodations (if provided to others)

More frequent breaks.

Water bottle at workstation.

Sitting stools.

Modified work schedule/shift.

Modify/eliminate non-essential duties

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EEOC’s Other ADAAA Suggested Accommodations (if provided to others)

Additional leave – (familiar?)

Telecommuting.

Leaves of absence like those provided to disabled or injured workers.

Hold jobs like those for employees on sick leave, STD, LTD.

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Questions Remain

What deference will be given to the EEOC’s latest pregnancy guidance?

Are disparate impact claims viable under the PDA?

Does the ADA(AA) reasonable accommodation analysis and obligations apply to pregnancy-based accommodations?

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State Expansion of Pregnancy Rights

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• 25 states have laws that expand upon FMLA

• 14 states and D.C. have lowered FMLA’s 50-employee threshold to as low as 10 employees

• Seven more states and D.C. have enacted laws allowing for more generous maternity leave lengths

• CA, NJ, and WA require some form of paid leave

• AK, NY, and RI still consider pregnancy a temporary disability eligible for paid benefits under disability insurance laws

• 12 states, D.C. and some local governments have laws treating pregnancy as a disability, subject to reasonable accommodation absent undue hardship

• AK, CA, CT, DE, HI, IA, IL, LA, MD, MN, NE, NJ


Is Federal Legislation Coming?

Pregnant Workers Fairness Act

– Originally introduced in 2012 & 2013; failed

– Reintroduced June 2015; currently in committee

– Modeled on the ADA

– Requires employers to make reasonable accommodations for pregnant workers

– Prevents employers from forcing women out on leave when another reasonable accommodation would allow them to continue working

– Prohibits employers from denying employment opportunities to women based on their need for reasonable accommodation related to pregnancy, childbirth or related medical conditions

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EEOC’s Recommended Best Practices: General

Discrimination/harassment policy.

Train managers.

Employee surveys and review employment policies to identify impediments.

Investigate all complaints.

Don’t Retaliate.

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Practical Solutions

Treat pregnant employees the same as you treat disabled employees, or others similar in ability to work.

Update light duty policy if…

Review attendance, leave (caps?), lifting policies or job requirements that might impact pregnant employees.

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Practical Solutions

Add pregnancy and breastfeeding/lactation to your harassment and discrimination policies.

Update accommodation policies. Will EEOC and DOL expect you to have a detailed accommodation policies and procedures?

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pregnancy in the workplace: recent developments in the law

Recruiting & HR