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Pregnancy discrimination

Are your managers due for training?

Financial, Executive and Professional Risks (FINEX)
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September 14, 2021

With a rise in the number of lawsuits alleging federal claims of pregnancy discrimination, ensure your managers are in compliance with state and federal laws.

Lawsuits on the rise

The past five years have been fertile ground for the filing of lawsuits alleging federal claims of pregnancy discrimination. Such lawsuits have been steadily on the rise since 2016, and filings continue to increase in 2021 despite the COVID-19 global pandemic.

Graph of federal pregnancy discrimination lawsuits from 2016 to 2021.
Graph showing the steady increase in federal pregnancy discrimination lawsuits from 2016 to 2021

Source: https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-bump-in-pregnancy-filings-continues-in-2021

Protections and accommodations for pregnant workers may also be expanded under federal law in the near future. On May 14, 2021, the bipartisan Pregnant Workers Fairness Act (“PWFA”) passed in the House by a vote of 315-1011, and it will now be considered by the Senate. If passed, the bill is expected to be signed into law by President Biden.

EEOC settlements in 2021

This targeted focus on protecting the rights of pregnant women in the workplace comes on the heels of various settlements recovered by the Equal Employment Opportunity Commission (“EEOC”) across the country since the beginning of the year:

  • May 19, 2021: $146,613 settlement by Dallas-based rehabilitation center. The employer had granted the pregnant employee, a behavioral health technician, a 30-day leave of absence for childbirth. However, after the employee delivered the baby by caesarean section, the employee’s doctor indicated she needed eight weeks to recover before returning to work. Human Resources, however, told the employee her position could not be held open beyond the 30 days, and her employment was terminated. In contrast, the employer had granted leave during the past 30 days to non-pregnant employees for reasons unrelated to pregnancy.2
  • March 5, 2021: $110,000 settlement by Pennsylvania-based security company. The EEOC charged that the employer transferred a security guard to a more strenuous post after it became aware she was pregnant. When the guard told the employer the new post was causing her pain, the company told her to obtain a doctor’s note rather than returning her to her initial post. After the guard provided the note, the company placed her on involuntary leave. The company then told the guard she needed another doctor’s note releasing her to return to work. The guard provided this note, but the company kept her on leave for over a month and then fired her.3

In fiscal year 2020, despite the decrease of workers in the office due to the pandemic, the EEOC received 2,698 charges of pregnancy discrimination nationwide, and obtained $15.3 million in monetary benefits through pre-litigation settlements and conciliation.4 Employers should be prepared for these numbers to continue to climb as workers return to the office amidst more challenging health and safety issues lingering from COVID-19.

Current federal law

Under Title VII of the Civil Rights Act, employers having fifteen (15) or more employees are prohibited from discriminating against employees because of their sex. In 1978, Congress passed the Pregnancy Discrimination Act (“PDA”) which amended Title VII to expressly include pregnancy as a component of sex discrimination.5

In 2015, the United States Supreme Court held in Young v. United Parcel Services, Inc., 135 S. Ct. 1338 (2015), that employers are required to accommodate pregnant employees under the PDA the same as other employees who are similarly situated in their ability or inability to work. For example, if an employer accommodates non-pregnant employees with lifting restrictions, it must similarly accommodate pregnant employees with lifting restrictions.

Under the Americans with Disabilities Act (“ADA”), a healthy or normal pregnancy is not considered a disability. However, pregnancy-related impairments or medical conditions may constitute disabilities under the ADA thereby triggering the employer’s obligation to engage in the interactive process to determine effective reasonable accommodations. A condition meets the definition of “disability” when it “substantially limits” one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating).6 Under the expansive protection of the ADA Amendments Act of 2008 (“ADAAA”), the operation of major bodily functions (i.e., the neurological, musculoskeletal, endocrine, and reproductive systems) is included in major life activities that may be affected by pregnancy related impairments.7 Some examples of qualifying disabilities include cervical insufficiency, anemia, sciatica, carpal tunnel syndrome, preeclampsia, gestational diabetes, abnormal heart rhythms, swelling, especially in the legs, due to limited circulation, and depression.

Thus, currently, employers’ accommodation obligations to pregnant workers are only triggered under the PDA, the ADA, or both under a comparative analysis(i.e., when there are non-pregnant employees who are similarly situated in their working ability and who are being accommodated in some way.)

The pregnant workers fairness act

If enacted, the PWFA will more directly address pregnancy discrimination and broaden protections for pregnant workers. Employers would be required to reasonably accommodate pregnant employees and job applicants, not just workers with pregnancy-related complications. Like the ADA, employers would be required to engage in an “interactive process” with employees to determine whether an accommodation is reasonable. The PWFA would also protect an employee who cannot perform an essential function of her job if that inability (1) is temporary, (2) will be eliminated in the “near future,” and (3) can be reasonably accommodated.8 Additionally, workers would be entitled to protection from retaliation, coercion, and intimidation for requesting or using a pregnancy-related accommodation.

State law

Currently, approximately 31 states have laws protecting pregnant employees and including explicit accommodation provisions. However, of those states five provide protections only for state employees: Alabama, Arizona, Arkansas, Idaho, and Nebraska. And Alaska only details provisions for public employers.

EEOC guidance

The EEOC’s intention to pursue its longstanding policy of eliminating overt pregnancy discrimination and subtle discriminatory practices has been evident for several years. On June 25, 2015, the EEOC re-issued a comprehensive Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”), accompanied by a Question and Answer document and a Fact Sheet for Small Businesses. The Guidance sets out the fundamental PDA non-discrimination requirements, and also explains the intersection of the ADA and the circumstances under which employers may have to provide light duty, or other reasonable accommodations, for pregnant workers.

The Guidance concludes with a section on “Best Practices” which outlines various proactive measures employers can take to decrease complaints and avoid pregnancy-related PDA and ADA violations. This section is recommended reading for all Human Resources and management personnel.

The EEOC will likely issue new guidance should the PDA become law.

Employers’ accommodation obligations

The Young decision and the EEOC’s Guidance make it clear that employers are obligated under the PDA and the ADA to accommodate pregnant employees – where they give accommodations to non-pregnant employees with similar limitations – in order to allow them to do their regular job safely.

With the potential passage of the PWFA, those accommodation obligations are likely to expand. Now is the time for employers to ensure they have a written accommodation policy in place, as well as a process for promptly considering reasonable accommodation requests.  Such requests should be granted where appropriate. Examples of reasonable accommodations include temporary transfer to a light duty position (if available), altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home. If a particular accommodation requested by an employee cannot be provided, the employer should explain why, and offer to discuss the possibility of providing an alternative accommodation.

What’s at risk?

An employee who prevails on a pregnancy discrimination and/or failure to accommodate claim may recover compensatory damages, punitive damages, and attorneys’ fees. In 2014, a California jury awarded an AutoZone employee $185 million in punitive damages, and more than $870,000 in compensatory damages for back pay, front pay, and emotional distress.9 The defendant raised legal motions challenging the verdict, and the case is believed to have settled at the Judge’s urging after a hearing on those motions.

In addition, where the EEOC pursues the matter on behalf of an employee, the employer may also be obligated to distribute new non-discrimination policies to its employees, post notices about the lawsuit and employee rights at its facilities, provide training to its employees, maintain records of any complaints of discrimination, and provide periodic compliance reports to the EEOC.

Suggested practices

Before employers find themselves on the wrong side of a pregnancy discrimination claim, they should consider whether their managers are due for training. Employers should take proactive measures to ensure compliance with federal and state law which provides protection to pregnant employees. In particular, employers should:

  • Consult with employment counsel to ensure their non-discrimination policy expressly includes pregnancy as a prohibited basis upon which to make employment decisions.
  • Be attuned to paternalistic notions and educate management that employment decisions cannot be based on what they think is in the best interests of the pregnant employee.
  • When faced with a pregnant employee’s request for accommodation, consider how the company treats non-pregnant employees similar in their ability or inability to work.
  • Be aware of the intersection between the ADA and pregnancy-related limitations.
  • Be prepared to engage in the interactive process about reasonable accommodation.
  • Review and update accommodation policies and employee handbooks to ensure they do not limit accommodations to non-pregnant employees.
  • Monitor legal developments with respect to the PWFA.

Additionally, multi-state employers should be aware of state and local law in each jurisdiction in which their employees work as accommodation requirements may be more expansive in other states and localities.

Footnotes

1 Pregnant Workers Fairness Act, H.R. 1065, 117th Cong. (2021); see also S. 1486, 117th Cong. (2021).

2 U.S. EEOC (Equal Employment Opportunity Commission), American Addiction Centers Settles EEOC Pregnancy Discrimination Suit, https://www.eeoc.gov/newsroom/american-addiction-centers-settles-eeoc-pregnancy-discrimination-suit. [Online; accessed 08/30/21]

3 U.S. EEOC (Equal Employment Opportunity Commission), Allied Universal to Pay $110,000 to Settle EEOC Pregnancy Discrimination Lawsuit, https://www.eeoc.gov/newsroom/american-addiction-centers-settles-eeoc-pregnancy-discrimination-suit. [Online; accessed 08/30/21]

4 U.S. EEOC (Equal Employment Opportunity Commission), Pregnancy Discrimination Charges FY 2010- FY 2020, https://www.eeoc.gov/statistics/pregnancy-discrimination-charges-fy-2010-fy-2020. [Online; accessed 08/30/21]

5 U.S. EEOC (Equal Employment Opportunity Commission). Pregnancy Discrimination Act of 1978. https://www.eeoc.gov/laws/statutes/pregnancy.cfm . [Online; accessed 08/30/21]

6 42 U.S.C. § 12102(1)(A) and (2)(A)

7 42 U.S.C.S. § 12102(2)(B)

8 4 H.R. 1065, 116th Cong. §§ 2(1), (5)(6)

9 Juarez v. Autozone Stores, Inc., No. 08-CV-0417-WVG, 2014 U.S. Dist. LEXIS 182400 (S.D. Cal. Nov. 18, 2014)

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed subsidiaries of Willis North America Inc., including Willis Towers Watson Northeast Inc. (in the United States) and Willis Canada, Inc.

Contacts

Jessica M. Farrelly
Freeman Mathis & Gary, LLP

FINEX – Claims & Legal Group

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