Recently in Pregnancy Category

January 24, 2014

NJ now bans discrimination based on pregnancy, childbirth or related medical conditions

Thumbnail image for nj.jpgI 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?

December 3, 2013

Pregnancy isn't a workplace disability, but how about morning sickness?

morningsickness.jpegAn 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?

Hmmm....

The answer after the jump...

Continue reading "Pregnancy isn't a workplace disability, but how about morning sickness?" »

October 29, 2013

Philadelphia bill would require companies to accommodate pregnant employees

Thumbnail image for philadelphia.jpgLast 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.

October 22, 2013

New NJ bill targets pregnancy and childbirth discrimination

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.

June 13, 2013

The most cockamamie excuse evah for firing a pregnant employee

bernie.jpgWhen 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!

[Cue music]

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:

  1. 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.
  2. The one exception.
  3. Otherwise, stick with that reason. When you shift reasons, you look shafty. And neither judges nor jurors like shafty.
June 5, 2013

Tough HR issues: ADA and extending a leave of absence

Depression-loss of loved oneAlright smarties. One of ABC Company's employees suffers from post-partum depression. She's been out of work for over a month, and the company wants to replace her. But, first, it wants your advice. 

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.

June 4, 2013

Firing a woman for lactating at work is against the law

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.

'Expressed breast milk' photo (c) 2007, Hamish Darby - license: http://creativecommons.org/licenses/by/2.0/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.]

December 4, 2012

EEOC: Bar claimed males like their Sunday servers sans embryo

Sports Bar*** Googles "sans," wipes brow while sighing in relief  ***

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.

October 3, 2012

New bill would require accommodations for pregnant employees

Pregnant woman2Does an employer have to provide a reasonable accommodation to a pregnant employee to allow her to perform the essential functions her job?

Let's see.

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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Continue reading "New bill would require accommodations for pregnant employees" »

June 15, 2012

Your state's family-leave benefits probably suck!

Family FunechaThat according to a a new survey from The National Partnership for Women & Families.

The survey compared how state-based rights and protections compare to the 12 weeks of leave for new and expecting parents provided by the federal Family and Medical Leave Act (FMLA), the protections provided by the Pregnancy Discrimination Act (PDA), and the right to express breast milk at work provided to some nursing mothers under the Fair Labor Standards Act (FLSA).

The report card covers all 50 states, plus the District of Columbia. No state earned an A. Only 1/3 scored a C- or higher, while more than 1/3 flat-out failed. The highest grades went to California and Connecticut, each earning an A-. Locally, New Jersey ranked near the top with a B+, while Pennsylvania scraped by with a D.

(h/t Christian Schappel)

May 10, 2012

Pregnant Workers Fairness Act introduced in Congress

Celia at workEarlier this week, Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-CA) and Susan Davis (D-CA), introduced the Pregnant Workers Fairness Act.

What's in the bill and how will it affect employers? Find out after the jump...

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Continue reading "Pregnant Workers Fairness Act introduced in Congress" »

February 16, 2012

A recap of yesterday's EEOC meeting on pregnancy discrimination

babyhospital.jpgMy loyal readers know that yesterday the U.S. Equal Employment Opportunity Commission held a public meeting to discuss pregnancy discrimination and caregiver issues.

Conversely, my disloyal readers can go to hell. No, no, I forgive you. Just send me a check and we'll call it even.

*** Takes meds ***

*** Flashes Men In Black red light ***

Ah, yes, pregnancy discrimination. Click through for a summary of what happened at yesterday's EEOC meeting...

* * *

Continue reading "A recap of yesterday's EEOC meeting on pregnancy discrimination" »

February 15, 2012

EEOC to meet today to discuss pregnancy discrimination

Thumbnail image for EEOC.jpg

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on the subject of pregnancy discrimination and caregiver issues at 9:30 a.m. today in Washington, DC. If you are in the area, feel free to stop by. The meeting is open to the public.

According to this press release, the Commission will examine "recent trends in discrimination against pregnant workers and workers with caregiving responsibilities, examining these two forms of discrimination as a continuum."

The timing of this meeting couldn't be better. The blogosphere has been abuzz about this recent decision in which a federal judge reasoned that lactation "is not pregnancy, childbirth, or a related medical condition" and, therefore, is not pregnancy-related. Consequently, "firing someone because of lactation or breast-pumping is not sex discrimination."

Methinks that may get discussed. I'll have a follow-up post on the meeting after it concludes.

December 27, 2011

"Sex-plus" discrimination: Illegal? Yes. But what the heck is it?

baby stroller favor

I have no idea. I was hoping that one of you could help me out.

Oh, wait, I'm supposed to be the expert here. Ok. Fine. I'll play some music and dish the deets -- hint, it has something to do with the picture -- after the jump...

* * *

Continue reading ""Sex-plus" discrimination: Illegal? Yes. But what the heck is it?" »

September 1, 2011

Fact or Fiction: Pregnancy is a disability under federal employment law

Thumbnail image for ffiction.png

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post".

The answer to today's question is fiction. Pregnancy is not a "disability" for purposes of the Americans with Disabilities Act. To be considered a disability under the ADA, covered persons must actually have physical or mental impairments that substantially limit one or more major life activities. Pregnancy is not considered an impairment under the law.

However, when it comes to pregnant employees, keep three things in mind:

  1. The Pregnancy Discrimination Act prohibits pregnancy-related discrimination. It requires that employers treat pregnant employees in the same manner as male and non-pregnant female employees in determining their ability to work.
  2. If an employer offers temporary or short-term disability leave, Title VII requires the employer to treat pregnancy and related conditions the same as non-pregnancy conditions.
  3. Last week, a federal appeals court ruled, for the first time, that pregnancy-related health complications can render an employee "disabled" under the ADA.