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My Employee's Pregnant! Now What?

United States Supreme Court Decision Highlights Pregnancy Discrimination Act

by Erin L. Ebeler, Woods & Aitken LLP

News of a pregnancy often promotes happy tears, hearty congratulations, and well wishes for the new parents-to-be and baby. However, a pregnancy also raises a host of issues in the employment context. Is the employee physically able to perform her tasks during the end stages of pregnancy? What if the employee needs to go on bed rest or develops a pregnancy-induced medical condition? How much leave must an employer provide after the birth of the baby? Sometimes, even well-intentioned, caring questions such as, “Do you really think you should be doing that in your condition?” may be the first step down the road to a discrimination charge.

On March 25, 2015, the United States Supreme Court addressed claims of pregnancy discrimination by a part-time UPS driver whose doctor told her she could not lift more than 20 pounds, which was later changed to 10 pounds, during her pregnancy. UPS required its drivers to be able to lift up to 70 pounds and did not allow the employee to work while pregnant. Consequently, she stayed at home without pay during most of her pregnancy. However, UPS had policies that would accommodate workers under similar restrictions due to work-related injuries or a number of other reasons. The employee argued that UPS discriminated against pregnant employees because it had light duty policies for numerous categories of people, but not pregnant employees. In other words, the employee argued that UPS must treat a pregnant employee the same as any other employee who is similar in his or her ability or inability to work. However, the court refused to find that Congress intended to grant pregnant employees “most-favored-nation” status whereby a pregnant employee was entitled to claim the benefit of an accommodation granted to one or two workers.

Rather, the Court stated that a pregnant employee was required to first set forth an initial – or prima facie – case of discrimination that would allow a trier of fact to infer that it was more likely than not that such actions were based on a discriminatory motive. Such proof would be made by showing, among other things, that the pregnant woman’s requested accommodation was treated differently from similar requests for accommodation by others who were not pregnant. The employer would then have the burden of establishing a legitimate, non-discriminatory reason for denying the accommodation. Notably, mere extra expense will not be sufficient to meet the employer’s burden according to the Court. If the employer meets that burden, then the employee will have to prove that the employer’s proffered reasons are pretextual. As the Court stated, a pregnant plaintiff may be able to make this showing of proof by demonstrating sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden. For example, an employee could show pretext by presenting evidence that the employer accommodates a large percentage of nonpregnant workers, but fails to accommodate a large percentage of pregnant employees.

Overview of the Pregnancy Discrimination Act (“PDA”)
Title VII of the Civil Rights Act prohibits discrimination on the basis of race, gender, sex, and other protected classes. The Pregnancy Discrimination Act was passed as an amendment to Title VII and clarified that the term “because of sex” or “on the basis of sex” also prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. Broadly speaking, employers must treat women who are affected by pregnancy or its related conditions in the same manner as other applicants or employees who are similar to the pregnant employee or applicant in their ability or non-ability to perform their work. Employers with at least 15 employees are subject to the PDA.

For instance, if a doctor’s note is required for all employees before sick leave is granted regardless of the nature of the illness, then a pregnant woman may also be required to submit a doctor’s note. If an employer allows temporarily disabled employees to take disability leave or leave without pay, then the employer must generally allow an employee who is temporarily disabled due to pregnancy to also take disability leave or leave without pay under the same conditions. Further, pre-determined rules by the employer regarding when a pregnant employee must go on leave or how soon an employee is allowed to return after child birth are generally unenforceable. Rather, pregnant employees must generally be allowed to work when they are able to perform the essential functions of their jobs.

Intersection of the PDA and Other Laws
Americans with Disabilities Act (“ADA”). Pregnancy is not considered to be a disability in and of itself under the ADA. However, certain impairments relating to pregnancy (e.g., preeclampsia, gestational diabetes, etc.) may be considered disabilities for which a reasonable accommodation must be made. In such a case, an employer may be required to make a reasonable accommodation for the pregnant employee so long as the accommodation does not pose an undue hardship for the employer. Possible examples of reasonable accommodations may include the following according to the EEOC:

  • Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
  • Modifying workplace policies by allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though the employer generally prohibits employees from keeping drinks at their workstations;
  • Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
  • Allowing a pregnant worker placed on bed rest to telework where feasible;
  • Granting leave in addition to what an employer would normally provide under a sick leave policy;
  • Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
  • Temporarily reassigning an employee to a light duty position.

Family Medical Leave Act (“FMLA”). For those employers who have more than 50 employees within a 75 mile radius, the FMLA may apply to certain pregnant employees. Generally speaking, to be eligible for FMLA leave, an employee will need to have worked for the employer for at least 12 months (doesn’t have to be consecutive) and performed at least 1,250 hours of service during the prior 12 months. If the pregnant employee is eligible for FMLA leave, then she is eligible to take up to 12 workweeks of leave in a 12 month period for the birth of a child, the employee’s own serious health condition, as well as other qualifying reasons. In certain circumstances, an employer may have to allow the leave on an intermittent basis.

Fair Labor Standards Act (“FLSA”) / Affordable Care Act (“ACA”). In 2010, the ACA amended certain provisions of the federal wage and hour laws set forth in the FLSA. Among other changes, the ACA required employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” Notably, if the employer has fewer than 50 employees, it may be able to claim an exemption from the requirement if it can show that complying would cause an undue hardship.