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Moms Fight Back

Discrimination claims by pregnant employees and new mothers are on the rise. But recent court rulings and new rules provide them with added protections -- and may lead to costly judgments against employers.

Monday, June 24, 2013
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Recent evidence suggest that many employers are either unaware of their obligations when it comes to the treatment of pregnant workers and those who have recently returned to work from maternity leave, or are simply choosing to disregard the law.

A new report from the National Women's Law Center titled It Shouldn't Be a Heavy Lift finds that many companies -- particularly those in service industries such as retail and male-dominated fields such as trucking, policing and firefighting -- routinely deny pregnant workers job accommodations that are typically granted to other workers who suffer from back pain and other physical ailments. For example, the report found, pregnant workers are often denied accommodations such as being allowed to take frequent bathroom breaks, avoid heavy lifting or sit down during extended work shifts.

"This is really shameful," Dina Bakst, co-president of nonprofit advocacy group A Better Balance -- which produced the report along with the NWLC -- told the Washington Post. "We run a legal clinic, and we hear stories like these all the time."

Although pregnancy is not considered a disability under federal law, a number of lawmakers hope to change that. The Pregnant Workers Fairness Act, which was recently re-introduced in the U.S. Senate, would make it an unlawful employment practice for many public and private employers to not make reasonable accommodations to the known limitations related to pregnancy, childbirth or related medical conditions of a job applicant or employee. Employers would be able to avoid the requirements only if they could prove that accommodation would impose an undue hardship.

Although the PWFA isn't law yet -- and is given little chance of passage in the current Congress -- existing laws such as Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act have tripped up a growing number of employers recently. Pregnancy discrimination claims filed with the Equal Employment Opportunity Commission have been steadily increasing during the past 15 years, the Washington Post reports, with 5,797 claims filed in 2011 and $17.2 million paid out by employers to settle those claims.

More recently, the 5th U.S. Circuit Court of Appeals overturned a ruling by a federal district court in Houston that dismissed a lawsuit brought by the EEOC on behalf of a woman who alleged she was fired after asking her employer whether she could pump breast milk at work. In dismissing the lawsuit, the district court had said that "lactation is not pregnancy, childbirth or a related medical condition."

In the original lawsuit, Donnicia Venters said she was fired after she asked her employer, Houston Funding, if she could have lactation space after returning to work from maternity leave. The company rejected her request and suggested she should stay at home. When Venters didn't return, Houston Funding fired her for abandoning her job.

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In reversing the earlier ruling and remanding the case back to the lower court, the court of appeals ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII and the Pregnancy Discrimination Act, since men -- as a matter of biology -- cannot be fired for such reasons.

"This ruling is probably going to have a long-term effect, given that it's the first court ruling that says discrimination on the basis of lactation is pregnancy discrimination," says Sarah Bouchard, a partner at Morgan Lewis Bockius in Philadelphia.

The decision should also draw attention to a relatively obscure provision of the Affordable Care Act, which amended the Fair Labor Standards Act to require that covered employers offer unpaid lactation breaks and an appropriate lactation space to nursing mothers, she says. Although the EEOC brought the lawsuit prior to the FLSA amendments, plaintiffs' attorneys filing suit on behalf of nursing mothers under Title VII could file a separate suit alleging violation of the FLSA as well, potentially leading to increased penalties and legal fees for employers, says Bouchard.

The FLSA and Title VII aren't the only laws HR needs to keep in mind when it comes to keeping their companies out of court, says Ellen Storch, a partner at Kaufman Dolowich & Voluck in New York.

"A number of states and municipalities have laws that are even more stringent than federal law in this area," she says. "For example, the FLSA mandates that employers have to accommodate nursing moms for at least a year following childbirth. In New York State, however, the law requires that you accommodate them for three years after childbirth."

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