Over the past decade, the number of claims pregnant workers have filed with the Equal Employment Opportunity Commission (“EEOC”) has risen by almost 50 percent, according to the National Women’s Law Center (“NWLC”). Most of these workers assert that their employers denied them reasonable accommodations, such as bathroom breaks, periodic rest breaks, breaks to facilitate increased water intake, less strenuous or hazardous work, and leave before and/or after childbirth. The EEOC warned employers in its 2013-2016 Strategic Enforcement Plan that it intends to increase its focus on discrimination allegations related to pregnancy.
The EEOC has kept its promise. According to the agency’s published statistics, in 2012 it recovered more than $14 million in settlements related to pregnancy discrimination, for example. The New York District Director, Kevin Berry, also announced in a recent press release that the EEOC will bring suit against Benhar Office Interiors for rescinding a job offer after finding out that an applicant was pregnant, stating that “[t]he EEOC will continue to take vigorous actions to remedy discrimination against pregnant applicants and employees.”
Advocacy groups like the NWLC have praised the EEOC’s efforts. Congress passed the Pregnancy Discrimination Act (“PDA”) a little over 35 years ago, amending Title VII to clarify that the prohibition on sex discrimination in employment includes discrimination on the basis of pregnancy. The rights the PDA establishes, though, are not necessarily expansive. The Act is commonly interpreted as prohibiting employers from taking an adverse employment action against women or otherwise treating them less favorably because they are pregnant, but it does not necessarily require employers to provide reasonable accommodations on account of pregnancy.
Other federal laws provide some protections for pregnancy, such as the Family and Medical Leave Act, which guarantees certain workers 12 weeks of protected unpaid leave, and the Affordable Care Act of 2010, which requires certain employers to provide reasonable breaks and private spaces for nursing mothers to express breast milk. The Americans with Disabilities Act Amendments Act, passed in 2008, expanded the Americans with Disabilities Act to include temporary disabilities, but pregnancy in and of itself, absent complications, is generally not considered a “disability.” Women’s advocacy groups maintain that existing federal laws are inadequate, and have not prevented employers from denying reasonable accommodations to pregnant workers. As a result, say women’s advocates, women have lost their jobs, taken unpaid leave, or decided to ignore doctors’ orders and continue to work without accommodations because they cannot afford to lose their jobs.
Groups such as the NWLC have accordingly pushed for the federal government to pass the Pregnant Workers Fairness Act (“PWFA”), which was introduced in both houses of Congress and is still in committee. The PWFA would clarify an employer’s responsibility to provide a reasonable accommodation related to pregnancy and prohibit an employer from denying job opportunities to an employee or applicant in order to avoid making a reasonable accommodation, or from compelling an employee to accept a particular accommodation. It is unclear if and when the PWFA will be passed, but it has gained approximately 113 cosponsors in the House of Representatives and at least 20 cosponsors in the Senate.
New State and Local Laws
Meanwhile, a number of state and local legislatures have passed their own laws to protect pregnant employees. Last month, New Jersey became the ninth state to enact legislation requiring employers to provide reasonable accommodations to such workers, absent certain exceptions. Governor Chris Christie signed the pregnancy discrimination bill into law on January 20, 2014 following overwhelming passage in the state legislature. The bill, however, did not win unanimous support from the Senate, until protections were added for employers, including an exception for undue hardship. New Jersey follows Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, and Texas, which have all adopted laws addressing pregnancy discrimination. Other states, including New York, have introduced similar statutes.
On January 30, 2014, a law amending the New York City Human Rights Law went into effect, making it unlawful for an employer to refuse to provide a qualified employee with reasonable accommodations for conditions related to pregnancy, childbirth, or related medical conditions, absent undue hardship. Similarly, on January 20, 2014, Philadelphia’s mayor signed new legislation prohibiting employers in the city from denying pregnant employees reasonable accommodations, except in the case of undue hardship.
The EEOC’s and private plaintiffs’ pursuit of pregnancy discrimination claims shows no signs of decline. Employers should be proactive in evaluating their company policies and workplace practices, with an eye towards not only federal laws, but also state and local laws related to pregnancy discrimination, including the duty to provide reasonable accommodations. Baker Hostetler attorneys are here to assist employers in complying with such laws.