A Growing Focus on Pregnancy Discrimination


Last month, the EEOC targeted three companies for the unlawful discharge of pregnant women, and a bill aimed at protecting the rights of pregnant workers was recently introduced in Congress.


Monday, November 12, 2012
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While a patchwork of federal laws already prohibit discrimination against employees affected by pregnancy or childbirth, recent Equal Employment Opportunity Commission lawsuits, as well as its recently announced enforcement plan, show a growing focus on defending mothers' rights in the workplace


The Pregnant Workers Fairness Act, introduced to the Senate in September, also suggest the issue is gaining momentum, particularly when it comes to making accommodations for expectant and recent mothers -- enough so that proactive HR leaders should be taking extra care that company policies and reactions to those employees could not be viewed as discrimination.


The Commission recently named pregnancy discrimination as an "emerging issue" and one of its priorities in its enforcement plan.


"The EEOC remains concerned about this significant problem; especially that it affects women (and men, when speaking about caregiving) in all walks of life, including senior executives, managers, teachers, housekeepers, etc.," says Christine Saah Nazer, the EEOC's acting director of communications. "The main thing to keep in mind when discussing pregnancy discrimination and caregiving issues is that employers should not rely on assumptions and/or stereotypes about an employee's ability to do a job."


The most common allegation by women when they come forward is discharge -- up to 71 percent of pregnancy discrimination charges include allegations of discharge based on pregnancy, Nazer added.


Just last month, the EEOC targeted three companies for the unlawful discharge of pregnant women.


Though it was part of written policy at Bayou City Wings, a Texas restaurant chain, the EEOC sued the company on September 26 for laying off a number of employees after the third month of their pregnancies.


In a case against J's Seafood of Panama City, filed September 27, the EEOC alleged that the company violated federal law by discharging two servers because of pregnancy. According to the EEOC, the restaurant told the employees their pregnancies caused them to be a liability to the company.


The EEOC also took issue with another company's response to a new mother's request to return to work. In EEOC v. Quest Intelligence Group, filed on Sept. 20, the EEOC claims that when a Quest security guard contacted the company to return to work after maternity leave, she was told that there was no work for her and she would be called if work became available. That call never came, the EEOC alleges, and the Commission claims its investigation showed that Quest hired several men weeks later.


In each of these lawsuits, the Commission is alleging that employees or applicants suffered adverse employment actions purely because they were pregnant, noted Susan Keating Anderson, a labor and employment attorney at Cleveland-based Walter & Haverfield who has focused a number of articles and blogs around the topics of breastfeeding in the workplace, the Family Medical Leave Act and EEOC concerns.


 "[Human resource executives] must realize that they cannot discriminate against employees or applicants on the basis of their pregnancy -- i.e., simply because she is pregnant, an employer cannot treat a pregnant employee differently from a non-pregnant employee even if doing so is written into a workplace policy, as was the situation in the Bayou City Wings lawsuit -- and they need to delve into the true motives behind a proposed adverse action to ensure discrimination isn't occurring," she says.


Though it is unlawful to discriminate against or harass workers based on pregnancy, childbirth or a related medical condition, federal law does not currently obligate employers to provide reasonable job accommodations to employees affected by pregnancy. The Pregnant Workers Fairness Act would implement accommodations requirements for pregnant employees and job applicants, as well as workers with limitations related to childbirth. A similar bill was introduced before the House last May.


Those proposed accommodation requirements would be similar to requirements for disabled workers under the Americans with Disabilities Act, according to Lisa Cassilly, partner at Alston & Bird. Cassilly leads the international firm's Labor & Employment Group and concentrates on the representation of management interests.    

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"While it remains to be seen if the bill will become law, if it does, HR professionals will need to educate their workforces to the new accommodation requirements and will be required to conduct individualized assessments of job accommodation requests presented by pregnant workers in much the same way as employers have become accustomed to doing in the case of disabled workers who require a job accommodation," she says.


"Many employers currently encourage or require pregnant workers to take leave -- sometimes paid, but sometimes not -- as an accommodation of pregnancy and pregnancy related limitations on the ability to perform the job," Cassilly says. "It will be important to recognize that employers must first determine that there is no other reasonable accommodation that would permit the employee to continue working during pregnancy before relying on leave time as a solution."


Anderson pointed out that the full ramifications of the proposed legislation would not be known for many years. For example, the EEOC still would have to identify the scope of "reasonable accommodations" as they relate to pregnancy.


"Thus, until those regulations are created, and until courts have considered the application of the PFWA to specific workplace situations, employers are somewhat in the dark as to what their actual responsibilities are under the PFWA," she says.


Since the number of women of childbearing age in the workforce is substantial, employers are likely to be confronted by accommodation requests on a regular basis and should be watching as these developments unfold, Cassilly says.


"Examples cited by supporters of the legislation, like providing a stool to a pregnant worker or allowing her to carry a water bottle to stay hydrated, do not on the surface test the boundaries of reasonableness," she says. "Other accommodations may not be so easy, especially if multiple pregnant workers seek similar accommodations. For example, requests for flexible work schedules, to be relieved of overtime responsibilities, or to work remotely all are probable requests and tend to represent much more of a challenge to employers."








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