Women make up more than half of the American workforce, and that number is growing every year. Although issues of sexual harassment and gender equity often receive more attention, how to deal with a pregnant employee who may have work limitations continues to upset employers. It’s an issue that is often a source of consternation and one that, if mishandled, could lead to legal liability for employers.
In 1978, Congress passed the Pregnancy Discrimination Act (PDA), which establishes that matters related to pregnancy are encompassed within the prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964. substance, it requires employers to provide the same accommodations to pregnant women as any other employee with a similar ability or disability to work. In addition to federal law, nearly 50% of states and many cities have passed regulations requiring employers to provide work accommodations to pregnant employees. Accommodations for pregnant employees have been an enforcement priority for the Equal Employment Opportunity Commission (EEOC). It has been identified as a “National Substantive Domain Priority” under the 2017-2021 EEOC Strategic Implementation Plan (SEP).
The Americans with Disabilities Act (ADA) also imposes certain obligations on the employer regarding pregnancy. Generally, the ADA requires employers to provide reasonable accommodations to employees with a “disability” that affects their ability to perform their job. Although pregnancy is not a disability, many pregnancy-related conditions are considered disabilities requiring employers to eventually provide accommodations. The ADA Amendment Act (ADAAA) passed in 2009 expanded the definition of a “disability”. Thus, impairments related to pregnancy could more easily be qualified as “disabilities” today than before the amendments. For example, the following pregnancy-related conditions could constitute a disability under the ADAA: anemia, depression, gestational diabetes, morning sickness, preeclampsia, and swelling of the feet and legs.
The Supreme Court addressed employers’ responsibility to accommodate pregnant employees in 2015. In the case of Young vs. UPS, the Court ruled in favor of a pregnant UPS driver who challenged UPS’s refusal to assign light duties during her pregnancy to accommodate her lifting restrictions. UPS had successfully argued in lower courts that light work was properly reserved for employees injured on the job and that pregnancy was not the same. The Court found that an employer has a duty to provide reasonable accommodation to a pregnant employee to the same extent that it provided accommodation to any other employee who was similarly restricted.
In 2019, the House of Representatives proposed a bill called The Pregnant Workers Fairness Act with the stated aim of clarifying the decision of the Young vs. UPS Case. It was argued that despite the provisions of the PDA and the Young decision, similar situations of pregnant employees who were denied accommodation continued to occur in many workplaces. According to Gillian Thomas, senior counsel for the ACLU’s Women’s Rights Project, “[r]Nearly a quarter of a million women a year do not get the housing they need to continue working. She noted that despite clear legal requirements, pregnant women are still being forced out of their jobs. Had the proposed law passed, it would have required employers to use the “interactive process” to determine what reasonable accommodation(s) can be offered to pregnant workers, which is the same framework required by the ‘ADA.
Notwithstanding allegations that the employer continues to fail to accommodate pregnant employees, the requirements of the relevant legal authorities are clear. For an ongoing pregnancy, an employer cannot fire, refuse to hire, demote, or take other adverse action against a woman for reasons of pregnancy, childbirth, or related medical condition. This is true even if the employer feels they are acting in the employee’s best interest. Likewise, an employer cannot discriminate on the basis of an employee’s intention or potential to become pregnant. Nor can an employer force an employee to take leave because she is pregnant. If the employee is restricted in the performance of their duties and is entitled to accommodation under the PDA or ADA, an employer may be required to provide reasonable accommodation.
Not all pregnant employees develop limitations that affect their ability to perform their job. However, when limitations arise, employers should carefully consider the following issues:
- What limits does the employee face?
- How do these limitations affect job performance?
- What specific tasks are problematic? and
- What accommodations might reduce or eliminate work performance problems?
Broad categories of functions that may be affected by pregnancy-related limitations include bending, carrying, climbing, kneeling, lifting, pushing and/or pulling, sitting, standing, temperature sensitivity, toileting or grooming issues and dietary needs.
Some of the types of accommodations employers should consider to address pregnancy-related limitations include reassigning marginal or non-essential job functions that pose a problem for the pregnant employee, modifying a work schedule , changing workplace policies such as allowing a pregnant employee more frequent breaks, temporarily reassigning the employee to light duties, and granting time off.
In light of the continued emphasis on employer obligations in the workplace to pregnant employees, it may become increasingly difficult for employers to defend an allegation of breach of work limitations. employment of a pregnant employee. Such claims are clearly a priority for EEOC enforcement and can become highly publicized and every employer should seek diligently to avoid them.
Rick Alaniz, JD, of Alaniz Associates, has been at the forefront of labor and employment law for over forty years. He began his legal career as General Counsel with the U.S. Department of Labor, served on the Presidential Cost of Living Board during the Nixon administration, and also held senior positions on the National Labor Relations Board. , first in Washington D.C. and later in Minneapolis where he coordinated NLRB law enforcement actions in the Midwestern Five-State region.