Quirky Question #249, Rebirth of Pregnancy Discrimination?

Question:

I work in Human Resources at a mid-size Minnesota company and am working on an HR resource related to workplace accommodations.  I am relatively familiar with the Americans with Disabilities Act, but am struggling to identify what, if any, accommodations we should be prepared to extend to pregnant employees.  Can you help?

Answer:  By Jessie Mischke and Joel O’Malley

Jessie Mischke

Jessie Mischke

Joe O'Malley

Joe O’Malley

Your question is a timely one.  Pregnancy discrimination and accommodation requirements have been topics of increased dialogue and subject to recent change.

In July 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) published an “EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues” (“guidance”) (available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm).  In the guidance, the EEOC analyzes the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), and briefly references the Family and Medical Leave Act (“FMLA”), Executive Order 13152, the Affordable Care Act (“ACA”), and state law.

With respect to the PDA, the guidance provides an overview of unlawful forms of pregnancy discrimination under Title VII and analyzes a number of scenarios, including those that relate to employer failures to provide pregnant employees equal access to benefits such as light duty work.  The EEOC emphasizes that employers must treat pregnant employees “temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.”

As for the ADA, the EEOC explains that pregnant employees may be entitled to reasonable accommodations under the statute “for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.”  In such cases, employers must provide employees with reasonable accommodations absent a showing of undue hardship.  According to the EEOC, examples of reasonable accommodations may include:

  • more frequent breaks
  • seating
  • allowing water bottles at work stations
  • redistributing certain job functions
  • altering the manner in which an employee performs her job functions
  • modifying policies, equipment, devices, or schedules
  • temporary assignments to light duty position
  • granting leaves

 

The State of Minnesota has also taken recent action in this context.  In May 2014, the state adopted the Women’s Economic Security Act (“WESA”).  Among other things, WESA increased protections related to pregnancy and parental leave, pregnancy accommodations, and protections for nursing mothers.  Pursuant to WESA, Minnesota employers with 21 or more employees must provide pregnant employees the following accommodations:

  • more frequent restroom, food, and water breaks
  • seating
  • limits on lifting over 20 pounds

 

Employers cannot claim these accommodations constitute undue hardships and cannot require employees to “obtain the advice of [their] licensed health care provider[s] or certified doula[s].”

Under WESA, employers must also engage in the interactive process and must provide employees with other reasonable accommodations “for health conditions related to pregnancy or childbirth” upon request and “with the advice” of the employee’s “licensed health care provider or certified doula,” unless the employer can demonstrate undue hardship.  According to the statutory provision, examples of reasonable accommodations in this context may include:

  • temporary transfers
  • seating accommodations
  • restroom breaks
  • limits on heaving lifting

 

Employers can also expect to see a Supreme Court decision on this topic.  In December 2014, the Court heard arguments in Young v. United Parcel Service, Inc., No. 12-1226, which involves the extent to which employers must provide pregnant employees work accommodations provided to other non-pregnant workers with work limitations under the PDA.

In sum, there is no simple—or single—answer to your question. Assuming WESA applies to your company, the organization must provide pregnant employees with certain accommodations outright and must further engage in the interactive process as to other requests for reasonable accommodations related to pregnancy or childbirth. Proceed with care; WESA is new and certain elements (such as the type and form of medical “advice” contemplated by the statute and the demands of the interactive process) remain unclear. At the federal level, be ready to assess how the PDA, ADA, FMLA, ACA, and other laws (including forthcoming case law) apply to individual requests for accommodations, and keep the EEOC’s guidance in mind. Finally, a variety of federal, state, local, and administrative laws and regulations regarding discrimination, accommodation requests, and the like may apply to certain requests for pregnancy-related accommodations.

Employers should stay tuned for additional developments in this area.  Please also refer to Dorsey & Whitney LLP’s related resources, including Quirky Question #230, Accommodating Nursing Mothers, available at: http://quirkyemploymentquestions.com/disability-discrimination/quirky-question-230-accommodating-nursing-mothers/, and publication regarding WESA, available at: http://www.dorsey.com/eu-Womens-Economic-Security-Act-WESA/.

Dorsey & Whitney

Dorsey & Whitney

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