Ok, to be fair, the Pregnancy Discrimination Amendment Act (here), isn’t exactly the most progressive piece of legislation. Kinda like putting provolone on a cheesesteak; no Cheez Whiz here. Congressman Tim Walberg (R-MI) and Senator Lisa Murkowski (R-AK) introduced the PDAA yesterday to clear up the confusion arising from the Supreme Court’s opinion in Young v. UPS. Continue reading
Yesterday, on the heels of the Supreme Court’s decision in Young v. UPS, Senator Bob Casey (D-PA), brought the Pregnant Workers Fairness Act back to the Senate. The Act, which is modeled after the Americans with Disabilities Act, makes it an unlawful employment practice for employers to: Continue reading
Holy crap. Literally.
A Texas church is now about $75,000 lighter in the wallet after a federal judge determined that having and enforcing a “no pregnancy in the workplace policy,” which prohibited the continued employment of any employee who became pregnant, violates Title VII of the Civil Rights Act of 1964. That’s the law that prohibits discrimination based on pregnancy. Yeah, it says it right there.
Here’s more on the decision from the EEOC’s press release.
At some point in our careers, as lawyers and HR professionals, we field the question, “Can I require a pregnancy employee to stop working, for the safety of either the employee or fetus?” To this, I respond that you treat a pregnant employee as you would anyone else. That is, if she is willing and able to perform her job successfully, then, under Title VII, you cannot force her to stop working.
But, I’ll do my best to sort it out for you.
Let’s assume that you have a pregnant employee who tells you that she has a lifting restriction. In the past, you have accommodated employees with disabilities who had similar lifting restrictions. You’ve also done the same for folks who got injured on the job and others who lost their Department of Transportation (DOT) certifications.
If you don’t provide the same accommodation to the pregnant employee, have you violated the Pregnancy Discrimination Act?
I know what some of you are thinking, “Seems more like a Tuesday topic to me.” To you folks I say, “Get the hell out of here! YOU’RE NUTS!!!”
Ok, you’re right, let’s start over.
One of the exotic dancers at a Georgia gentlemen’s club got preggers. Wait. Do the kids still say preggers? Yeah, let’s try and be mature about the serious Monday post. A woman who gyrates on stage for dollars, and maybe on customers’ laps too — I don’t know for sure — got pregnant. Hey, look, I’m not judging.
Two months later, she lost her job.
The woman claimed that her employment was terminated due to her pregnancy in violation of Title VII. Continue reading
Oh, if I had a nickel for every time I got this question from an employer, “Hey Eric. We have this pregnant employee and she is very close to term. We’re concerned that if she continues working all the way up to childbirth, she may harm herself or the fetus. Can we require her to stay home?”
Eek! Check out this recent press release from the EEOC in which the agency announced that it is suing an employer, which allegedly required a pregnant employee to take unpaid leave until she was cleared by a doctor indicating that she could work despite her pregnancy. The EEOC further alleges, when the employee failed to provide a release, and after she and her mother disputed the legality of the requirement, the employee was fired in retaliation.
So, under federal anti-discrimination law, the answer to today’s QATQQ is, generally, fiction.
Note: A United States Supreme Court majority opinion predicted that Title VII, which contains the Pregnancy Discrimination Act, would preempt state law, thereby absolving employers that complied with Title VII from liability for any fetal injury. (Although the concurrence was more skeptical). Further, that same case recognized a narrow safety exception that would allow an employer to remove a pregnant employee from the workplace; namely, in instances in which pregnancy actually interferes with the employee’s ability to perform the job.
On the heels of yesterday’s astounding blogging success, “What LeBron’s return teaches employers about accommodating the Mark of the Beast” — Pulitzer, please — I was planning on coming at you today with “Five Workplace Lessons from Dutch Soccer’s Third Place in the World Cup.” It was going to have this cute Orange is the New Black theme, but then, the Twitterz spoke.
— EEOC.gov (@EEOCNews) July 14, 2014
— Chai Feldblum (@chaifeldblum) July 14, 2014
Raise your hand if one of the U.S. Equal Employment Opportunity Commissioners told you what to blog about today. Quit showing off, Dan Schwartz, put your hand down.
So, it looks like we’ll be talking pregnancy discrimination today.
Yesterday, the U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, a FAQ and a Fact Sheet for Small Businesses.
A split in opinion among the EEOC Commissioners.
The final vote on the guidance was 3-2 in favor. You can read EEOC Commissioner Feldblum’s on Approval of the Enforcement Guidance here. She praised the Commission’s position in its Enforcement Guidance as “simple” and based “on a plain text reading of the PDA.”
And then you’ve got Commissioner Lipnic’s statement disapproving of the EEOC guidance here. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on this case), and without first making the EEOC’s Guidance available for public comment.
Commissioner Barker too criticized the EEOC Guidance here. In particular, she panned it not only for its timing, but also for requiring employers to provide the types of accommodations for pregnant employees that the Americans with Disabilities Act requires for disabled individuals.
(Commissioners: If you’d like to continue this debate, I have plenty of blog space available for you. It’s not all Ramadan Bagel Parties and me contemplating ADA accommodations for female masturbation. Just sayin’).
Five takeaways for employers.
As you all should know, the Pregnancy Discrimination Act, which is part of Title VII, makes it unlawful to discriminate in the workplace based on pregnancy, childbirth, or related medical conditions. The new EEOC Guidance, however, highlights a few issues of which employers should take particular note. Here are five of ’em:
- Not only is it unlawful to discriminate against an employee who is currently pregnant, but discrimination based on past pregnancy and a woman’s potential to become pregnant also violates the law.
- You can’t require a pregnant employee who is able to do her job to take leave — even out of genuine care for the employee or the fetus. More on that here and here.
- Lactation is a pregnancy-related medical condition. Duh!
- Employers who provide health insurance benefits must also provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions.
- Employers must offer light duty to pregnant employees if a light duty position is available.
The guidance also includes, well, guidance, on the interplay between pregnancy and the Americans with Disabilities Act and offers a list of employer best practices.
And since we’re on the subject, I’d be remiss if I didn’t ask. If anyone out there is available to babysit my four kids this weekend so that the wife and I catch dinner and the late showing of Dawn of the Planet of the Apes (her choice), holler at me.