Legal Rights for Pregnant Workers under Federal Law

If you are pregnant, have been pregnant, or may become pregnant, and if your employer has 15 or more employees, you are protected against pregnancy-based discrimination and harassment at work under federal law. You may also have a legal right to work adjustments that will allow you to do your job without jeopardizing your health.

1.  If my employer knows that I am pregnant or may become pregnant, could I get fired? 

Under the PDA, employers are not allowed to discriminate against you based on the fact that –

◦you are pregnant;
◦you were pregnant;
◦you could become pregnant, or intend to become pregnant;
◦you have a medical condition that is related to pregnancy; or
◦you had an abortion, or are considering having an abortion.

In general, this means that you cannot be fired, rejected for a job or promotion, given lesser assignments, or forced to take leave for any of these reasons. An employer does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace. However, your employer cannot remove you from your job or place you on leave because it believes that work would pose a risk to you or your pregnancy.

2.  What if I am being harassed because of pregnancy or a pregnancy-related medical condition?

Harassment based on pregnancy or a pregnancy-related medical condition is not allowed under the PDA and ADA. You should tell your employer about any harassment if you want the employer to stop the problem. Follow your employer’s reporting procedures if there are any. If you report the harassment, your employer is legally required to take action to prevent it from occurring in the future.

3.  What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.” Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

You may be able to get an accommodation under the PDA if your employer gives accommodations to employees who have limitations that are similar to yours, but were not caused by pregnancy.

You may be able to get an accommodation under the ADA if you have a pregnancy-related medical condition such as cervical insufficiency, anemia, sciatica, preeclampsia, gestational diabetes, or depression, that meets the ADA definition of “disability.” A condition meets the definition if it would, when left untreated, “substantially limit” one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions). A condition does not have to be permanent or severe, or result in a high degree of functional limitation, to be “substantially limiting.” It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when present.

You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific. However, you should know that the ADA doesn’t require your employer to make changes that involve significant difficulty or expense. Also, if more than one accommodation would work, the employer can choose which one to give you.

4.  What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true. Your health care provider may not have considered the possibility that an accommodation would allow you to do your regular job safely. (See Question 3 above.) Things like reduced workloads and temporary reassignments often come with reduced pay, but your employer is not allowed to reduce your pay because you need an accommodation to do your regular job.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the PDA. Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

5.  What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation. You may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. More information about this law can be found at www.dol.gov/whd/fmla. Some states and localities have passed laws that provide additional protections

6.  What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy. You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA. An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one. The employer also cannot charge you for the costs of an accommodation. Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it. Your health care provider might also be asked whether particular accommodations would meet your needs. You can help your health care provider understand the law of reasonable accommodation by bringing a copy of the EEOC publication Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work to your appointment.

7.  What should I do if I think that my rights have been violated?

Contact legal counsel immediately.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Second Circuit clarifies ratios in pregnancy case

dec14_18_459881578A good analysis from the Second Circuit post-Young on a common defense argument – “The defendants perplexingly suggest that these figures show that pregnant employees were not significantly burdened because “only one of 176 COs were affected by this policy.” But under Young, the focus is on how many pregnant employees were denied accommodations in relation to the total number of pregnant employees, not how many were denied accommodations in relation to all employees, pregnant or not. The reason is simple enough; this comparison better reveals whether or not there is a burden on pregnant employees. If an employer has fifty pregnant employees and only five are adversely affected by its policy, it will be more difficult to draw an inference of a significant burden because many pregnant employees are able to or have taken advantage of the accommodation, providing less reason to believe that the policy is motivated by animus against pregnant employees. On the other hand, if an employer has just one pregnant employee and she has been adversely affected, then it has undoubtedly imposed a significant burden on its pregnant employees – it has burdened the only one it has. Contrary to the defendants’ implication, an employer cannot justify pregnancy discrimination by relying upon the fact that pregnant employees constitute an insignificant part of its workforce.” Legg v. Ulster County

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Legislators to Supreme Court: Pregnancy Discrimination Act means what it says

heavylift-pregnantworkers-report-250More than 100 members of Congress filed an amicus curiae brief urging the U.S. Supreme Court to overturn the decision rendered by the U.S. Court of Appeals for the Fourth Circuit rejecting a former United Parcel Service worker’s pregnancy and disability bias suit, arguing that the Pregnancy Discrimination Act (PDA) demands pregnant workers receive the same accommodations available to non-pregnant workers. The amicus brief in Peggy Young v. United Parcel Service Inc. (No. 12-1226) asserts that an employee’s inability to work is irrelevant under the PDA and that the Fourth Circuit’s decision misinterprets the PDA and the Supreme Court’s own precedent by improperly narrowing the protections that lawmakers intended to guarantee to pregnant workers.

The Fourth’s Circuit’s ruling held that UPS did not violate the PDA when it refused to allow Young to continue working with the company instead of offering her the light work the company grants to disabled workers and those injured on the job. The ruling affirmed the district court’s dismissal of Young’s 2008 suit, which alleged UPS violated the Americans with Disabilities Act and the PDA by not allowing her to work while under a doctor’s order not to lift 70-pound packages, an ability company policy defines as an “essential function” of the job.

Philadelphia protects pregnant workers from discrimination

CaptureFollowing a new national report revealing that pregnant women face significant barriers in the workplace, the City of Philadelphia passed new legislation that will  improve workplace conditions for pregnant employees. The new amendment to the City’s Fair Practices Ordinance prohibits pregnancy-related discrimination and requires employers to provide reasonable workplace accommodations for employees who have needs related to pregnancy, childbirth, or a related medical condition. The ordinance extends protections beyond those in the Pennsylvania Human Relations Act, Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978, and the Americans with Disabilities Act. It became effective January 20, 2014.

The Women’s Law Project, PathWays, and the Maternity Care Coalition testified to the city council in support of the bill, as did Rue Landau, executive director of the Philadelphia Commission on Human Relations, the agency responsible for enforcing the ordinance. Landau noted that the majority of Philadelphia children—53 percent—are raised by one parent, most often a woman. “Very simply put,” she said, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.” She told the council about some women she has met through her agency that could have benefited from this amendment, among them a waitress dealing with morning sickness who was fired for frequent trips to the bathroom and a nurse who was fired after requesting an extended leave of absence in the wake of a diagnosis of a condition that required rest.

Under the new law, discrimination on the basis of “pregnancy, childbirth, or a related medical condition” is specifically defined as a form of sex discrimination. In addition, the ordinance defines the failure to provide reasonable accommodation as an unlawful employment practice. Typical accommodations include 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.

Aggrieved employees may seek  injunctive and other equitable relief, as well as compensatory damages, punitive damages, and reasonable attorneys’ fees.

In the state legislature, the new Women’s Health Caucus recently announced bills that would provide similar protections in both the House and Senate. Pennsylvania workers file more pregnancy discrimination charges than in more than 40 other States, yet Pennsylvania law currently offers few protections against pregnancy-related discrimination.

Pass the Pregnant Workers Fairness Act

A report released last week by two legal advocacy groups found pregnant workers are routinely discriminated against when they need accommodations due to the physical demands of pregnancy.

The DC-based National Women’s Law Center and Better Balance in New York found that women workers around the country, particularly those in low-wage jobs and fields predominately held by men, faced a number of barriers that forced them out of work earlier than planned; caused miscarriages, pregnancy complications and other health problems; and put the women and their families in dire economic straits.

The report calls for the passage of the Pregnant Workers Fairness Act, introduced in Congress last month, which seeks to clarify the intention of the 2008 amendment to the Americans with Disabilities Act as it applies to pregnant workers, who are entitled to be accommodated on par with employees with temporary disabilities. The report also calls for the Equal Opportunity Employment Commission (EEOC) to do more to inform and guide employers about their legal obligations to pregnant workers.

The EEOC has litigated a host of gender and pregnancy discrimination cases including the recent appeals court victory in the case of a Texas woman who was fired for asking her employer if she would be able to pump breast milk when she returned to work. But the report’s authors want the agency to do more to prevent discrimination from occurring in the first place.

“The thing about pregnancy is that it’s a relatively short period of time, and if a woman has to pursue her case through the legal process, probably she’s already lost,” said Liz Watson with the National Women’s Law Center. “The sooner we get clarification from the EEOC about what the law requires, we’re going to be able to head a lot of this off.”

The report highlights the stories of several women including Peggy Young, who worked for UPS when she said she was told the company’s light duty policy did not extend to pregnant workers and that she could not come back to work until she was no longer pregnant because she was “too much of a liability.” Young asked the US Supreme Court to review her case after an appeals court ruled that UPS did not violate the 1978 Pregnancy Discrimination Act, which says employers must treat pregnant employees the same as other workers with the similar ability to do their jobs. She lost her health insurance and disability rights related to pregnancy and childbirth. “What started as a very happy pregnancy became one of the most stressful times of my life,” she said.

Guadalupe Hernandez (a pseudonym) worked at a fast food restaurant and received excellent performance reviews. But when she became pregnant, her supervisor refused her bathroom breaks and forbade her to drink water on the job although other workers were permitted to do so. He eventually fired her in front of her coworkers. “For the first time in my life, I had to ask for government assistance,” she said. “I tried to look for other work, but every time I went to a potential employer they looked at my bellow and said ‘no.’ My husband, who was not working at the time, my older child and my baby paid the price.”

“By all means this is something we are seeking to eradicate,” said EEOC spokesperson Justine Lisser. She said EEOC’s recently issued strategic enforcement plan for fiscal years 2013 to 2016 will give priority to issues associated with significant demographic changes. A May report by Pew Research found 40 percent of working mothers are now the primary income earners for their families.

“Speaking anecdotally, a lot of it is not subtle compared to other forms of discrimination that we see,” said Lisser. “A lot of it is the manager telling the employee, ‘We’re putting you on reduced hours because pregnant women need to rest; my wife needed to rest, so you need to rest.’ ”

The economic repercussions of this type of overreach can be devastating for expecting mothers and their families. Other forms of workplace discrimination put the health of expecting mothers at risk. Watson said the Pregnant Workers Fairness Act is a necessity to protect simple accommodations like allowing pregnant workers to stay off high ladders, drink water on the job and sit on a stool instead of stand. Women who work in low-wage jobs where they may have little control over their duties and work conditions and are under close supervision stand to benefit the most from these types of improvements, but Watson said it doesn’t end there.

“The more that this right to accommodation becomes more a part of the fabric of the workplace,” she said, “it’s going to be good for all workers.”

Watson thinks employers would benefit, too. She said the employers profiled in the report “are often making decisions that are, frankly, against their economic interest, that are resulting in higher workforce turnover, that are lowering employee morale, that are making it harder for employees to do their jobs.” She and her coauthors found the cost of accommodating pregnant workers was zero. The Job Accommodation Network (JAN) has found that half of accommodations for workers with disabilities cost employers nothing, and those that cost, typically involve a one-time outlay of about $500.

In 2006 to 2008, close to 88 percent of mothers who worked while pregnant worked into their last two months of pregnancy, and 82 percent worked into their last month of pregnancy, according to US Census data.

New cases seek to clarify pregnancy discrimination laws

As reported April 1, 2013 by Anna Louie Sussman of Reuters: 

Two recent complaints filed with the U.S. Equal Employment Opportunity Commission seek to clarify the rights of pregnant women under a 2008 amendment to the Americans with Disabilities Act. Both complaints were brought by pregnant women who said they were denied reasonable accommodations for pregnancy-related disabilities.

Since 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees. In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy-related impairments, and the EEOC issued regulations codifying the act in March 2011.

In a complaint filed Thursday, Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome. Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash. After Crosby submitted a note from a chiropractic neurologist attesting to pregnancy-related carpal tunnel syndrome, the hospital said the information needed to come from her obstetrician. Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm. Several supervisors refused her requests for work with limited lifting, and she was involuntarily placed on unpaid leave under the Family and Medical Leave Act.

“They just kept saying, ‘It’s policy, it’s policy,'” Crosby told Reuters.

According to the complaint, which was filed by the National Women’s Law Center, other hospital employees who had suffered injuries or were otherwise unable to complete aspects of their jobs had been accommodated.

A spokesman for the hospital said he had not seen the complaint and could not comment on it.

LIGHT DUTIES

A separate complaint filed in January by the American Civil Liberties Union alleges that United Parcel Service Inc failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.

In August, the company offered her a light-duty position on the condition that it would not count toward seniority or benefits, an offer she described as “unlike, and worse than UPS’s accommodation of other, non-pregnant employees.”

A spokeswoman for UPS said the company does not discriminate against pregnant workers and that it adheres to all aspects of the law.

Typically, the EEOC attempts to mediate between the parties, and if that fails it investigates the claim. If the investigation finds that a law has been violated, the EEOC can settle, sue or, in some cases, refer the case to the Department of Justice. If no violation is found, the aggrieved party can still sue privately.

A spokesman for the EEOC declined to comment on the two cases.

But in its three-year strategic enforcement plan, released in December 2012, the agency identified accommodating pregnancy-related limitations under ADAAA and the PDA as an “emerging issue.”

With little case law on the books since the regulations were issued in March 2011, employers are in uncharted waters, said Stacie Caraway, an employment lawyer at Miller & Martin PLC in Chattanooga, Tennessee, who is not involved in either case. For example, she said, it is difficult to tell whether the hospital’s request for additional documentation was unreasonable. “We had 25 years of case law with the ADA to tell us what was reasonable and what was not, but now we’re starting from scratch,” she said. “That’s what makes these cases kind of a crapshoot.” Employers should be “conservative” and lean toward accommodating workers where possible, Caraway said. “If the proof shows that someone has a pregnancy-related disability, then the employer does have a duty to accommodate it as with cancer or any other disability.”

EARLIER CASE

The two cases highlight changes in the legal landscape since the Americans with Disabilities Amendments Act was passed. In a 2008 case filed a few months before the law came into effect, the 4th U.S. Circuit Court of Appeals ruled that the Pregnancy Discrimination Act did not require UPS to accommodate pregnant worker Peggy Young by offering her light duty, despite offering it to workers injured on the job. “The ADAAA certainly broadens the definition of disability and means that a number of conditions caused by pregnancy might be treated as disabilities now, where they wouldn’t have before,” said Samuel Bagenstos, a professor at the University of Michigan Law School and a prominent disability rights advocate. Bagenstos and other lawyers are preparing a petition on Young’s behalf at the U.S. Supreme Court.

Cara Greene, a co-chair of Outten & Golden’s Family Responsibilities and Disability Discrimination practice group in New York, said these cases highlight how the PDA and the ADAAA interact to require accommodations that the court denied to Young. “Employers are missing the fact that just because a disability results from pregnancy, it doesn’t mean they don’t have to accommodate it,” Greene said.

Legislation to codify these obligations has stalled. The Pregnant Workers Fairness Act, introduced last year in Congress, would require employers to make the same types of accommodations for pregnancy, childbirth and related medical conditions as they do for disabilities. It is due to be reintroduced this spring, according to a spokeswoman for the National Women’s Law Center. Galen Sherwin, a staff attorney with the American Civil Liberties Union’s Women’s Rights Project, said that the two laws, the PDA and the ADAAA, should already be sufficient. “If employers are now required to treat a broader category of disabled individuals with compassion by providing them the necessary job accommodations, but they are refusing those same type of job accommodations to pregnant women, that really flies in the face of Congress’s intent in passing the PDA.”

Time to guarantee paid maternity leave

Figure 1

The United States remains the only member of the Organisation for Economic Co-operation and Development, or OECD, that does not guarantee mothers any paid time off from work after the birth of a new child. (see Figure 1) In fact, the United States is one of only three countries in the world—along with Liberia and Papua New Guinea—where workers do not have the right to paid maternity leave.

At best, only about half of working mothers in the United States can qualify for 12 weeks of unpaid job-protected leave offered through the Family and Medical Leave Act—but any wage replacement for the time off is at the discretion of their employers. The only exceptions are for women working in California and New Jersey, which both have paid family leave insurance programs. These two statewide programs are financed by a payroll tax on workers and impose no new costs on employers. In fact, employers may save money by reducing costs associated with employee turnover, which is usually about one-fifth of an employee’s salary.

Other countries recognize the many benefits of offering paid parental leave, from increased breastfeeding rates and better child health outcomes to greater paternal involvement in a child’s life when leave is offered for men. Another well-documented effect of paid maternity leave is higher maternal employment: When women have access to paid leave after the birth of a new child, they are more likely to return to work than women who do not have access to paid leave. As a result, there is a strong relationship between maternal employment and women’s access to paid maternity leave.

It should not be surprising, then, that countries guaranteeing longer paid maternity leave tend to enjoy lower child poverty rates as well. (see Figure 3) This is because the majority of women must take at least some time off from work to physically recover from childbirth, and paid leave makes them more likely to return to employment after. It is also because paid leave is associated with higher maternal wages. In the United States, access to paid maternity leave makes mothers less likely to rely on public assistance after the birth of a child.

It is high time that the United States recognizes the need for paid family leave and starts reaping the benefits that other countries have been enjoying for decades.

Some tips for expecting moms and new moms

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent significant difficulty or expense. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

Harassment because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth is a no-no. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Pregnancy accommodation bills introduced in House and Senate

Earlier this Fall, Senator Bob Casey (D-PA) introduced the Pregnant Workers Fairness Act (S. 3565), a bill that would require employers to make reasonable accommodations for pregnant employees and job applicants as well as those with limitations related to childbirth.   Long overdue, and modeled after provisions in the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act would create anti-discrimination and retaliation protections for workers who request a reasonable accommodation related to their pregnancy, childbirth, or associated medical conditions, and prevent employers from requiring that a pregnant employee take leave if she could perform her job with a reasonable accommodation. The bill would also make it unlawful for an employer to require an applicant or employee affected by pregnancy or childbirth to accept a particular accommodation.

Title VII rights and remedies would apply to any violations of the Pregnant Workers Fairness Act.   If passed, the measure would direct the Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the law within two years of the bill’s enactment.  In a press release, Sen. Casey said: “Pregnant workers face discrimination in the workplace every day, which is an inexcusable detriment to women and working families in Pennsylvania and across the country,” adding: “My bill will finally extend fairness to pregnant women so that they can continue to contribute to a productive economy while progressing through pregnancy in good health.”  A House version of this bill (H.R. 5647) was introduced by Rep. Jerrold Nadler (D-NY) on May 8, 2012. That bill has not advanced out of committee.

Results: $500,000 in pregnancy discrimination case

Mr. Lamberton recently obtained a significant recovery for a client in a pregnancy
discrimination case, involving a current cash component and reinstatement offer
with a combined total cash value of more than $500,000.  The employer will also
revamp its written employment policies, and provide training to its managers on
the civil rights laws.