There are quite a few laws and regulations that bar discrimination and require accommodations to pregnant and caregiving employees, and that maze of rules makes it difficult for employers to comply at times. An EEOC hearing on the issue may signal more rules to come.
Discrimination against pregnant women and caregivers continues to be a widespread problem but conflicting federal and state regulations make it difficult to create a one-size-fits-all approach to staying in compliance, panelists told the Equal Employment Opportunity Commission in Washington earlier this week.
Over the past decade, the number of pregnancy discrimination charges has increased by 35 percent and about one in five charges of discrimination filed by women involves claims of pregnancy, testified Judith Lichtman, senior advisor for the National Partnership for Women & Families based in Washington.
This third foray into the topic by the EEOC since 2007 signals that the commission seeks to educate employers and employees and put organizations on warning that discrimination will not be tolerated, experts say.
The Pregnancy Disability Act has been in effect for more than 30 years and violations are as equally important for employers to avoid as sexual discrimination, says Sara Begley, a partner with Reed Smith in Philadelphia, where she focuses on employment and labor issues.
"By making announcement of heightened enforcement, they've indicated they'll put resources behind litigating these cases," she says.
Pregnancy-discrimination cases, she says, have until recently "slipped through the cracks and run below the radar."
For HR leaders, manager training is critical, she says.
"Pregnant employees are protected against discrimination in hiring, promotion, discipline and job security," she says. "We will see more charges filed by pregnant women and many more plaintiffs attorneys expressing interest [in such cases]."
Sarah Bouchard, partner in the Labor and Employment Practice Group at Morgan, Lewis & Bockius in Philadelphia, advises companies to take a proactive approach with pregnant employees.
"Make sure that the leave process is smooth and that there are fulsome discussions, collaborative discussions about transitioning matters and making sure that, when someone comes back, they feel like a member of the team," she says.
She also cited a recent U.S. District Court decision in Houston, where the judges ruled it was not sex discrimination when an employer fired a woman for wanting a place to pump breast milk at work. The ruling -- "The law does not punish lactation discrimination," according to the three-page opinion -- matches several others and has not yet been challenged in a higher court to clarify the issue.
Of course, at the same time, the healthcare-reform law states that employers with more than 50 employees must provide breastfeeding mothers with "reasonable break time" and a private place (not a bathroom) to express breastmilk during the workday until the child's first birthday.
The law was effective immediately upon signing, but regulations are currently being drafted by the Department of Labor.
"My advice is that no-size-fits-all for women taking [pregnancy] leave and then reintegrating into the workplace," says Bouchard. "HR professionals need to understand what one woman wants in terms of work/life balance is not what another wants.
"Don't presume," she says, "that she doesn't want to travel, that she doesn't want to handle a key account because it requires evening entertainment. Just don't make presumptions."
U.S. Chamber of Commerce spokesperson Blair Latoff says the organization supports the EEOC's efforts to educate employees and employers about their rights and obligations under the nation's anti-discrimination laws.
"The laws that the EEOC enforces provide important protections for employees, while recognizing the rights of employers to make legitimate business decisions," she says. "We would expect any guidance by the Commission in these areas to recognize both principles."
Pete Gillespie, counsel with Fisher & Phillips' Employment Litigation and Counseling practice in Chicago, says "the main thing that HR needs to pay attention to is the [EEOC's] emphasis on avoiding stereotypes or making assumptions about what someone who needs to care for a family member or have a child would expect in particular circumstances."
He also notes that pregnancy and caregiving issues are covered by a wide range of regulations, including the Family and Medical Leave Act, Americans with Disabilities Act, Pregnancy Discrimination Act, Title VII and others -- all of which makes it difficult to sort out what accommodations workers are entitled to, as well as how much protection they have to return to their jobs.
"It's a continuing issue," says Larry Lorber, a partner with Proskauer's Employment Law Counseling & Training practice in Washington. "In addition, what the hearing highlighted is a truism that there are all sorts of conflicts and no connections between Title VII, the FMLA and the ADA.
"There's an effort being made," he says, "to try to get at least some coordination and clarification between the EEOC and the Labor Department."
"This is a mine field," he adds. "The FMLA has turned out to be a nightmare for [HR professionals]. It's extraordinarily complex."
The EEOC panelists also addressed discrimination against caregivers -- whether male or female -- as a protected class as well.
"It's an outdated stereotype that caregivers should be a women. Male employees who are punished for taking leave taking care of their parents or when they've had a child would be a violation of the law," Begley says. "It's a teaching moment."
Gillespie says HR leaders would be wise to review the EEOC's 2009 informal guidelines on caregiver issues in general.
"The EEOC said that the best practices they were highlighting went over and above what the EEOC requires," he says. "I think what the agency is trying to do with [the latest] hearing is to bring more facts to light and expand the scope of the laws and address more issues that are coming."
Adds Lorber: "It would be nice if they would hold more hearings. One day of hearings doesn't do much unless there's follow up. In this instance, employers would want follow up and maybe see if they could get the stakeholders to come up with some recommendations."