Seems one employer may not have received the memo. Now, the EEOC is taking aim. More on this and some tips for employers to avoid pregnancy-accommodation traps, after the jump...
Recently in Pregnancy Category
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.
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.
(And, by third, I mean eighth).
Or dip my English toe into the Breaking Amish pool.
So, in an attempt to get in the mood, I tried to bake a shoofly pie, but, short on blackstap molasses and a replacement plug for my Easy Bake Oven, I quickly audibled to a Fluffernutter.
Because nothing speaks to me to resolve a Wednesday night Amish television dilemma like a Fluffernutter, amirite?
But, two -- ok, two-and-a-half -- Fluffernutters later, I had a hankering to blog about the Supreme Court's employment-law docket for next session, which includes a pregnancy discrimination case, involving the manner in which an employer would have to accommodate a pregnant employee.
But, then, my peanut-buttery-marshmallow focus honed in on this recent decision from United States District Court for the Southern District of New York. It involves an employee who returned from maternity leave and, shortly thereafter, applied for a job promotion, only to be bypassed for another candidate. So, she quit and sued for pregnancy discrimination.
Now, the Pregnancy Discrimination Act prohibits discrimination based on pregnancy. It also protects those who have recently given birth...up to a point. That is, a new mom is protected too. But, the passage of time will eventually carry a new mom outside of the protection of the Pregnancy Discrimination Act.
How long you ask? Well, according to the court deciding the employer's motion to dismiss, about four months, which, ironically, is the time it would take me to master the art of baking shoofly pie.
In denying the motion to dismiss and allowing the bypassed plaintiff to continue to pursue her pregnancy discrimination claim, the court measured the time period from the date of childbirth to the date the plaintiff first applied for the promotion, which was under four months. (Rather than when the employer hired someone else to fill the position, which was beyond four months).
So, employers, learn from the mistake made here and do it right:
wait four months and a day before taking adverse employment actions against new moms, don't allow pregnancy (or recent childbirth) to factor, at all, into your employment decisions. Make sure that your managers, the ones making the decisions, understand that as well. And don't forget about sex-plus discrimination either.
Hey, how'd that last song get in there? Someone call my music editor!
Image credit: Giphy
Recently, I gave a webinar about the interplay between the Family and Medical Leave Act and the Americans with Disabilities Act. One of the takeaways there was that, when an employee's 12 weeks of FMLA leave expire, you need to be thinking about ADA implications rather than processing a pink slip at 12 weeks and a day. This is because additional leave may be a reasonable accommodation.
The same issues can arise if you have a pregnant employee. That is, you need to consider the interplay between the Pregnancy Discrimination Act and the ADA.
A recent case shows how the ADA may apply to pregnant employees.
Trevis Reed was a Special Education Teacher in Louisiana, until she was fired from her position. Ms. Reed was pregnant and used all of her allotted leave time from August 2011 from February 2012.
Ms. Reed was scheduled to return to work on February 15, 2011, however her psychiatrist would not clear her to return until two weeks later, on February 28, 2011. The school refused to grant the extra two weeks of leave, and fired Ms. Reed when she failed to return to work on the 15th.
Ms. Reed then sued for violation of the ADA.
Two weeks of additional leave may be a reasonable accommodation.
The school did not challenge that Ms. Reed was disabled. (Note: Pregnancy is not a disability. However, postpartum depression could be). Rather, the school argued that, when it fired Ms. Reed, she was not a qualified individual within the definition of the ADA. That is, she could not perform the essential functions of her job with or without a reasonable accommodation.
Even though the plaintiff's counsel failed to address the school's argument that Ms. Reed was not qualified, the Court, on its own examination, still denied the School's motion for summary judgment. That is, it determined in this opinion that a reasonable jury could conclude that an additional two weeks of leave was a reasonable accommodation for Ms. Reed:
"The Court does not find on this record that Reed's request for the additional leave was improper, or that it fell beyond the bounds of the general rule that a reasonable accommodation may include "providing additional unpaid leave for necessary treatment." Nor does the Court find on the existing record that after February 28, 2011 Reed was inhibited from fulfilling the necessary requirements of the job."
Takeaways for employers
Unfortunately for employers, there is no magic formula to determine how much additional leave, beyond that which an employee has already been allotted, is reasonable. Each case -- and each leave scenario -- stands on its own set of facts. That said, consider these takeways:
- The more leave you initially provide, the tougher it will be to argue that a brief period of subsequent leave is unreasonable.
- Denying two weeks of additional leave to a new mom who is suffering from doctor-certified postpartum issues is cold as ice. That's a great way to earn yourself a jury trial.
- Many of PDA/FMLA leaves of absence will involve ADA issues and, thus, foreshadow an interactive dialogue to discuss reasonable accommodations. Don't wait until leave is about to end to broach this subject. Plan ahead. Communicate with that employee early and often.
If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.
Back in February, I reported here about the new pregnancy-accommodation law that went into effect in Philadelphia.
The law requires local business to provide reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.
The law also requires Philly employers to post notice of the new law in the workplace.
Here is that poster.
And here is some random music that has nothing to do with pregnancy, but has been burning a hole in my Spotify queue.
P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group.
I blogged about it here back in October.
My epic Lil' Za Halloween costume. Both the NJ House and Senate had proposed legislation whereby a female employee affected by pregnancy could not be treated worse than other non-pregnant co-workers, but similar in their ability or inability to work.
Well, now, it's the law, son! Under the new law, which Governor Chris Christie (R) signed on Tuesday, employers must provide reasonable accommodation to pregnant employees that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth. Examples include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work. An employer can avoid accommodation if it can establish that doing so would cause it undue hardship.
The new law takes effect immediately.
BTW - How awesome is this kids' cover of Tool's Forty Six and 2? Amazing, right?
An employee-plaintiff who claims that she was discriminated against under the Americans with Disabilities Act due to her pregnancy alone, will lose her ADA claim 10 times out of 10. This is because pregnancy is not a disability under the ADA.
But what if that same employee plaintiff with an ADA claim alleges that the discrimination relates not to her pregnancy, but rather to her morning sickness?
The answer after the jump...
Last week, I brought you this news of a bill pending in New Jersey, requiring employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician.
Yesterday, I read this article in The Legal Intelligencer about this potential amendment to Philadelphia's Fair Practices Ordinance, which too would require employers to make reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition.
What, you may ask, do the bill's sponsors have in mind for reasonable accommodation?
An accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job. Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.
The law would task employers with providing accommodating pregnant employees, unless doing so would create undue hardship. The Americans with Disabilities Act does not require this -- except for pregnancy-related disabilities. However, the Pregnancy Discrimination Act may require it in certain circumstances. For more on that, check out Robin Shea's post at the Employment and Labor Insider.
And check in here for periodic updates on the pending legislation in Philadelphia.
New Jersey is the home of deep fried hot dogs and the Law Against Discrimination, one of the most employee-friendly anti-discrimination statutes in the country. Here, pregnant employees can order a ripper with relish at Rutt's Hut, but, somehow, are not entitled to preferential leave treatment in the workplace.
However, a new bill pending in the NJ Senate would change all that.
Not the hot dogs, silly. They rule. You know what doesn't rule? Leaving a quart of Rutt's Hut relish in the backseat of your buddy's car overnight during a high-90s Summer heat wave. Sorry, dude.
But about that bill. Christina M. Michelson at BusinessLawNews.com has the scoop:
Under the proposed legislation, a woman affected by pregnancy cannot be treated, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work. The proposed amendment to the LAD specifically requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician. It also prohibits the employer from penalizing the employee in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.
You can view a copy of the proposed legislation here.
When it comes to reasons for firing employees, I've heard some good ones in my day -- and by good, I mean legitimate.
Conversely, the excuse I just read in the Seventh Circuit's opinion in Hitchcock v. Angel Corps., Inc., a case involving a pregnancy discrimination claim, may be the worst. The worst one ever.
Angel Corps and its management staff feel that as a result of [the plaintiff's] actions she compromised the health and safety of this client. According to policy and procedure this action will result in an immediate termination.
Angel Corps is a non-medical home care agency that performs personal care services for its clients. And the plaintiff was a client services supervisor who, indeed, had recently visited a client.
So what makes this excuse so lame? So absurd? Such an all-timer?
Well, you see. Angel Corps. asked the plaintiff to visit a new 100-year old client for intake and assessment. When the plaintiff showed up at the centenarian's house, she assessed that the client was dead. That's right, dead! The client was already dead. For two days.
Naturally, the plaintiff, who had informed Angel Corps that she was pregnant, suspected that something was amiss her; possibly the firing for failing to properly care for a dead person reflected discriminatory animus against the plaintiff. (Well, that and the increased scrutiny and work heaped on her after her baby announcement).
But hold on here, folks. Maybe, just maybe, I'm overselling this. So, let's consider the supervisor affidavit that Angel Corps. filed with the lower court in support of its motion for summary judgment on the pregnancy discrimination claims:
Had [the client] been living at the time Hitchcock did her assessment (such as when Hitchcock was originally scheduled to assess [the client on March 31]) Hitchcock would have compromised the health and safety of [the client] by not conducting a proper assessment and by not attending to or taking steps for Angel Corps [to] attend to obvious problems of [the client], such as the dried liquid on her mouth.
For realz! That's what they filed. And you know what? The lower court granted summary judgment to Angel Corps. It dismissed the pregnancy discrimination claims!
Fortunately, the Seventh Circuit disagreed, finding that Angel Corps' "legitimate business reason" for terminating Ms. Hitchcock may be pretextual; i.e., phony:
A reasonable juror could also find the explanation ... to be so ludicrous that Angel Corps is not to be believed...Angel Corps's brief attempts to make sense out of [this], but it does so by piling on additional ever-evolving justifications that may cause a reasonable juror to wonder whether Angel Corps can ever get its story straight.
Two takeaways for my readers:
- If you have a reason for firing someone, make sure it's a good one that doesn't involve failing to administer proper care to a dead person.
- The one exception.
- Otherwise, stick with that reason. When you shift reasons, you look shafty. And neither judges nor jurors like shafty.
Read all the facts below:
Emily Employee is an HR Coordinator at ABC Company. ABC provides short-term disability benefits for regular full-time employee like Emily. Last year, Emily began a 12-week maternity leave under the FMLA, during which time she received STD benefits. She returned to work with no restrictions.
Earlier this year, in late January, Emily met with her supervisor and requested a 30-day leave for post-partum depression. Emily's doctor faxed a letter to ABC requesting that Emily remain off work until late February. ABC approved her leave. In late February, Emily provided a second doctor's note stating that the post-partum had not resolved and Emily would need to remain out of work until early April. Emily submitted a medical certification form in mid-March.
Emily's supervisor comes to you with concerns that Emily's continued absences are problematic and creating workflow issues within HR. During her leave of absence, other employees in HR have also picked up some of Emily's duties. However, the majority of Emily's work has been performed by a temporary employee, Temporary Tammy.
ABC is considering terminating Emily before she returns in April and replacing her full-time with Tammy in May. However, Tammy will not be able to start until August (she too is pregnant).
So, what do you tell ABC? Let me know in the comments below.
(Later today, I'll post a link to a recent federal court decision discussing this very issue)
UPDATE: Here is the case. An Indiana federal court denied the employer's motion for summary judgment on this issue, suggesting (but not concluding) that an extended leave would have been reasonable. Further, the facts here appear to undercut any argument that attendance was an essential job function. But, the court wouldn't go so far as to say the employer was wrong for terminating "Emily." That will be up to a jury to decide.
Allow me to be serious for a moment...
Moment's passed, eh? Ok. Let me bring it back...
Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).
In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss "responded with a strong 'NO. Maybe she needs to stay home longer.'"
Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf.
In defending, Houston Funding argued Title VII does not cover "breast pump discrimination" and moved for summary judgment. The district court granted the motion, finding that, even if Venters' allegations were true, "[f]iring someone because of lactation or breast-pumping is not sex discrimination," because neither is a related medical condition of pregnancy. The EEOC timely appealed.
On appeal, the Fifth Circuit began its analysis by noting that the Pregnancy Discrimination Act (PDA), which is part of Title VII, provides that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]" Therefore, Title VII must "cover a far wider range of employment decisions entailing female physiology," of which lactation is one of them. Consequently, the court easily concluded that the lower court was wrong and Ms. Venters stated a possible claim for Title VII sex discrimination.
Takeaway: Not only must employers consider their obligations under the Fair Labor Standards Act to provide nursing moms time and space to express breast milk at work, but taking action against a mom who requests to pump at work may get you discrimination lawsuit. (Although, the PDA does not require employers to affirmatively provide accommodations).
So, educate supervisors and management about these areas to avoid possible legal issues and, more importantly, treat new moms with the respect and dignity they deserve.
[Yes, I realize the irony of that last statement juxtaposed against the soundtrack for this blog post.]
I'm not aware of any studies or surveys that the Sandbar Mexican Grill conducted on this subject. Instead, I imagine something like this:
Sandbar Customer: "Two please."
Sandbar Manager: "Sure. But before I seat you, do you see that bartender over there? She's *gasp* pregnant. That's why we have her behind the bar, instead of in your face distracting you from watching the Arizona Cardinals, losers of eight in a row. Given that it's Football Sunday, we even raised the bar an extra foot just in case her fetus is sitting high. And, as an extra precaution, we have a curtain between the bar and the employee bathroom so that you won't have to avert your eyes should nature call. We used to have a bucket behind the bar for her, but our lawyers frowned on that. Really, what am I saying is, should we just fire her? Uh, fellas?!? Come back! I'll make the other servers pee on sticks. Don't run away! I assure you, it's EPT; not that ClearBlue crap! Come one guys! Half-price Vodka/Rock Stars! Fellas!
[Dramatization: Never occurred. Ever.]
Anyway, I gather that when the EEOC sued the Sandbar for pregnancy discrimination on behalf of a waitress whom the Sandbar had fired, the EEOC wasn't all that concerned with anecdotal or scientific evidence concerning customer preferences. That's the sense I got from this EEOC press release. Rather, the EEOC believed that the waitress was fired because she was pregnant -- as opposed to the Sandbar having a legitimate business reason.
So, is it legal to fire a female bartender at a sports bar because customers supposedly prefer their waitresses without baby bumps? Probably not, as we know from the Handbook's
transparent attempt to boost SEO hard-hitting two-part exposé covering the Wild Beaver Saloon.
But, a definitive answer will have to wait for another day. Wisely, the Sandbar, where "Shiturday" is just a dream, but kids eat free on Monday, settled with the EEOC.
Americans with Disabilities Act? No. Pregnancy is not a disability. Title VII of the Civil Rights Act? Well that depends. The Pregnancy Discrimination Act is part of Title VII. But the current state of law is such that employers need only treat pregnant employees as they would other employees with temporary disabilities. However, most employers do afford accommodations (e.g., light duty) to employees with temporary disabilities. So, they would have to do the same for pregnant employees too.
But do I smell some duplicative federal legislation after the jump? I sure do. Click through for details...
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