By Jody Stein, Esq.
Pregnancy Discrimination. It is a fairly simple concept: employers may not discriminate against women based on their pregnancy. But what if a pregnant woman is limited in her ability to perform her job during the pregnancy? What are an employer’s obligations? The answer to that question is not always straightforward.
Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination based on “pregnancy, childbirth or other related conditions.”i So under Title VII, employers, with at least 15 employees, must treat women with pregnancy related conditions the same as other temporarily disabled employees. The EEOC has interpreted this provision to mean that “the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.”ii
Medical conditions related to pregnancy are not specifically defined. However, in some instances pregnant women may have conditions that qualify as disabilities. To understand the legal meaning of “disability,” we must look to the Americans with Disabilities Act (“ADA”). A normal pregnancy is not generally considered a disability under the ADA. Thus, while pregnant women may not be discriminated against, their employers are not traditionally required to alter the workplace or job to make it easier for a healthy pregnant employee.iii
Under the ADA, a disability must be a physical or mental impairment that “substantially limits one or more major life activities.”iv With the new and improved ADAAA (2008), the rights of women with pregnancy related medical conditions expanded for employers with more than 15 employees. The basic definition of the term “disability” remained the same, however, what constituted a major life activity was expanded to include “major bodily functions” such as reproductive functions.v The ADAAA also specified that disability would include those employees with temporary or less severe impairments, rejecting the more stringent interpretation of “substantially limits” made by the U.S. Supreme Court. As a result, some pregnancy related impairments could now be considered disabilities requiring accommodation. These impairments could include hypertension, gestational diabetes, severe nausea, preeclampsia and sciatica.vi Moreover, even when a pregnancy related condition does not qualify as a “disability” per se and arises out of a healthy pregnancy, the employer may still be required to accommodate a limitation. This obligation stems from the Title VII requirement that pregnant women be treated the same as other employees similarly limited. Job modifications made for employees with temporary impairments must also be made for similar impairments arising out of pregnancy.vii
The Family and Medical Leave Act also bears somewhat on an employer’s obligation to accommodate when it employs 50 or more employees. “Any period of incapacity due to pregnancy, or for prenatal care” is a serious health condition qualifying for leave under the FMLA.viii Women needing time off for prenatal appointments, morning sickness, bed rest or other pregnancy related conditions might be entitled to intermittent leave.ixAdditionally, individual states may also have statutes providing leave to pregnant employees.
Federal case law on this issue has often favored employers. The most notable recent case is Young v. United Parcel Service, Inc. (2013). Peggy Young was a delivery driver for UPS when she became pregnant. Her doctor provided UPS with a note recommending that Ms. Young not be asked to lift more than twenty pounds during the first twenty weeks of her pregnancy. UPS would not allow her to continue working because the job required employees to lift up to seventy pounds. UPS declined to give her a light duty assignment. Ms. Young sued for sex and disability discrimination.
The Fourth Circuit Court of Appeals ruled against her. UPS had a policy permitting employees injured on the job or disabled within the meaning of the ADA to transfer to light duty. Ms. Young was not disabled simply because she was pregnant. The Court noted clear case law on that issue. The relatively low weight restriction and short duration were not sufficient limitations on a “major life activity” to qualify as a disability. With respect to the Pregnancy Discrimination Act, Ms. Young argued that the PDA entitled her to be treated the same as the other employees entitled to light duty. The Court rejected that argument, finding the policy “pregnancy blind” and that pregnant employees are not entitled to preferential treatment. A pregnant employee would not be entitled to more accommodation than an employee temporarily impaired by an off the job injury.
Before employers rely on this decision in making determinations, it is important to note the Court decided the case based only on the ADA, and not expanded language of the ADAAA. Thus, it is in question whether Ms. Young would have had to be accommodated under the broader statutory language. In addition, the Supreme Court is still deciding whether to take the case for review.
Federal law on the issue of accommodation is continuing to evolve and employers should review it carefully before determining how to proceed with a pregnant employee.
Approximately 11 states and two cities have their own laws about accommodating pregnancy.x In some of these places, an employer’s obligation to accommodate expands. Most of the statutes apply irrespective of how long the employee has been employed. Additionally, many of the statutes offer employers an “undue hardship” exception to their accommodation obligations.
Currently, Alaska, Texas and Illinois limit state protections for pregnancy accommodation to public employees. Alaska is limited to state employees; Illinois to peace officers and fire fighters; and Texas to county and municipal employees. It should be noted that Illinois has proposed legislation to expand pregnancy accommodations to all working women.xi
Maryland and Hawaii require employers to make reasonable accommodation to pregnant employees with pregnancy related disabilities.xii Maryland requires transfers to less strenuous or hazardous positions in some circumstances and may also require certification from a physician.
California, Connecticut, Louisiana, Minnesota, New Jersey, New York City, Philadelphia and West Virginia may expand an employers’ obligation to accommodate beyond what federal law may require.xiii California, Louisiana, Minnesota, New Jersey and West Virginia require accommodation for a pregnant woman when she requests it and her doctor advises it. In Connecticut, a pregnant woman is entitled to accommodation when her position could be a hazard to her or her baby. It appears that women seeking accommodation may not need to meet the definition of “disability” as defined in the ADA. New York City and Philadelphia are the broadest, simply requiring reasonable accommodation for pregnant women. Thus, women in these areas may have an easier time demanding and obtaining workplace accommodations. The Minnesota law, which just went into effect in May 2014, precludes employers from claiming undue hardship or requesting a doctor’s note for: more frequent restroom, food, and water breaks; seating: and restrictions on lifting more than 20 pounds. California, Minnesota, and Virginia have specific language prohibiting retaliation against pregnant women seeking accommodation.
New York City, Philadelphia and New Jersey identify some of the possible accommodations that might be necessary. These possible accommodations are: bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, job reassignment and temporary transfers to less strenuous or hazardous work.xv Iowa and Pennsylvania are known to have pending legislation on pregnancy accommodation.
At the federal level, the Pregnant Workers Fairness Act was introduced in the House and Senate about a year ago.xvi The text of the proposed legislation requires reasonable accommodations for pregnancy related limitations except in the case of undue hardship. It further makes it an unlawful employment practice to deny employment opportunities to pregnant women needing reasonable accommodation and to require an employee to accept an undesired accommodation.
Federal law is developing and unclear whether and when employers may have to accommodate pregnancy related conditions. Various states and cities have imposed their own obligations to accommodate. There is no bright line rule but rather a patchwork of obligations. Employers must proceed cautiously and be aware of the ongoing changes to local and state laws in this growing area.