Special Delivery: Solutions for Employers With Pregnant Workers

10-01-2015
By Susan Hance Sorrells, Esq., SPHR

Pregnant workers find themselves anticipating a major life change. Their employers, however, are faced with the challenge of managing the situation in a productive, discrimination-free manner. Most employers with pregnant employees encounter common scenarios that can be addressed with confidence if only they heed some simple guidance.

A Job Applicant or an Employee Announces Her Pregnancy

Assistant Amy approaches Manager Marty and says, “Can we talk?” Although Marty does not know what this question portends, he quickly replies, “Come in my office” and shuts the door. 

Manager Marty knows that Assistant Amy has been doing a great job since she was hired two years earlier, and Amy was pregnant when she was hired. Marty recalls how Downer David initially discouraged Marty from hiring Amy precisely because she was pregnant. Marty, who always tries to do the right thing, did not call Human Resources Heather for advice; however, Marty recognized Amy’s superior skills and qualifications and hired her. Marty has not regretted that decision. 

Has Manager Marty handled this situation correctly so far? When Marty first interviewed Amy, and she informed him that she was pregnant, Marty should have contacted the Human Resources Department rather than Downer David for assistance. Any part that Amy’s pregnancy played in Marty’s hiring decision could be considered discriminatory. Downer David needs some management training!

As Amy sits down in Marty’s office, he wonders what she is going to tell him. Amy says, “I’m expecting another baby in six months.” Marty takes a deep breath and says, “Congratulations!” What should he do now?

What Does the Law Say?

The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.¹ If Downer David had convinced Manager Marty not to hire Assistant Amy because Amy was pregnant, the employer would be discriminating based on pregnancy; even though Amy was an applicant at the time, the PDA still protected her. 

It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).²Manager Marty may not harass Assistant Amy because she announces a second pregnancy. Any unwelcome or offensive comments Marty makes to Amy about her pregnancy may be unlawful. 

What Not to Say

When first learning of Assistant Amy’s pregnancy, Manager Marty must weigh his words carefully. He absolutely should not say the following:

• I thought you were gaining some weight.
• When is the baby due?
• How much time off do you plan to take?
• Who is going to care for your baby?
• You’re always going to have someone sick in your home.
• You can’t afford daycare for two children!
• This always happens. I find a good assistant who just keeps leaving to have babies!

What to Say

• Congratulations!
• Are you familiar with our pregnancy policy? Let me accompany you to Human Resources so you can give them the exciting news. They will have all the information you need.

A Pregnant Worker Requests a Change in Duty

Three months go by, and Assistant Amy now has a request for Manager Marty. According to Amy, “My doctor says I can’t lift anything over 20 lbs. I only do that maybe once a day when a really big package arrives in the office. I have to put it on a two-wheeler to take it to the right person.” Amy says that she will need someone else to lift and transport those packages throughout the rest of her pregnancy. Amy does not tell Marty that she knows that over the past year, at least five male employees have been provided light duty or different assignments while recovering from various surgical procedures. Amy has confidence that her employer will take care of her.   

What does the Law Say?

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee. For example, 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.³  

Just this year, the Supreme Court addressed the issue of a pregnant employee requesting a change in duty due to a medical condition. According to the Supreme Court's decision in Young v. United Parcel Serv., Inc.,⁴ a PDA plaintiff may establish a prima facie case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.’"⁵ In Young, the Court stated that accommodating most non-pregnant employees with lifting limitations while failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact, meaning that the jury would decide whether the employer’s practice is discriminatory.⁶  

What Not to Say

When Assistant Amy approaches Manager Marty asking for a change in her responsibilities due to her pregnancy, Marty must respond appropriately. He absolutely should not say the following:

• If you can’t do your job, we need to find someone else who can.
• I knew this pregnancy would get in the way of work.
• I’m sure that lifting just 20 pounds will not hurt you or your baby.
• Until you go out on maternity leave, you have to perform your normal tasks.
• Give me your doctor’s phone number.
• Having a pregnant employee in the workplace is just too much of a liability. You’re fired.

What to Say

• Thank you for coming to me about this.
• I appreciate you bringing this problem to my attention.
• Let’s go talk to someone in Human Resources and make sure we take care of this correctly.

Proactive Ways to Improve Morale and Avoid Problems

Manager Marty consults with his Human Resources Director, who advises him to accommodate Assistant Amy’s request. Marty asks a runner to call Amy every afternoon to see if any large package arrives and if so, the runner can deliver it for Amy. Amy finds the accommodation to be satisfactory, and Marty believes it does not cause any undue hardship for the company. Now Marty considers whether the company is adequately prepared for concerns that may arise in the future. What should the company do to avoid future problems regarding pregnant employees?

EEOC:  General Guidelines

Pregnancy discrimination claims filed with the Equal Employment Opportunity Commission (“EEOC”) grew by 35 percent from 1997 to 2007.⁷ It is imperative that not only human resources personnel but also managers understand the potential ramifications of pregnancy discrimination in the workplace as well as proactive steps to take to prevent such problems. On June 25, 2015, EEOC provided some guidance on pregnancy discrimination issues, hoping to decrease employee complaints of pregnancy discrimination while increasing employee productivity. The EEOC includes the following as best practices: 

1. Draft and execute a policy prohibiting discrimination based upon pregnancy, childbirth, and related medical conditions. Provide multiple avenues of complaint and ensure that employees making a complaint will be protected from retaliation.
2. Train both manager and employees about their rights and responsibilities regarding pregnancy, childbirth, and related medical conditions. Include this information as part of regular anti-harassment training.
3. Gather feedback from employees to identify practices that may disadvantage women affected by pregnancy, childbirth, and related medical conditions.
4. Respond to complaints effectively with a prompt and thorough investigation, and implement corrective action to resolve the situation.

EEOC:  Employment Decisions

The EEOC also provided guidance for employers when making employment decisions.

1. Determine qualification standards for each position that focus on the essential functions and duties of the position, decreasing the possibility of gender stereotyping and discrimination on the basis of pregnancy, childbirth, or related medical conditions.
2. Focus on an applicant’s qualifications and do not ask if she is pregnant, has children, or plans to have children.
3. Avoid stereotypes about women affected by pregnancy, childbirth, or related medical conditions when making employment decisions. For example, refusing to offer a pregnant employee a business opportunity requiring travel because a manager assumes that a pregnant employee cannot travel for business purposes could be considered discriminatory. The employee should inform her manager if she requires an accommodation based upon her pregnancy.
4. Focus on work experience and accomplishments when considering a promotion. Treat an employee who took leave for pregnancy, childbirth, or related medical conditions the same as a worker with uninterrupted service.

EEOC:  Accommodations

1. Structure light duty policies so that pregnant employees have the same access to light duty as other employees with similar limitations on their ability to work.
2. Temporarily reassign job duties, if feasible, that pregnant employee are unable to perform because of pregnancy.
3. Enact a written reasonable accommodation policy that reasonable accommodations may be available to employees with temporary impairments, including those related to pregnancy.
4. Provide alternative accommodations if possible when unable to provide an accommodation explicitly requested by a pregnant employee.

Manager Marty now has the tools to address with confidence concerns that might arise because of an employee’s pregnancy, childbirth, or related medical condition. Assistant Amy will indeed have a special delivery. Follow these guidelines, and you too will have nothing to fear when your employee announces her pregnancy.