Pregnancy discrimination is heading to the Supreme Court, which mirrors the trend of states and the EEOC protecting mothers-to-be.
The high court agreed to hear a case against UPS, contending that it violated the Pregnancy Discrimination Act by refusing to change a pregnant employee’s assignment after a doctor told her she shouldn’t lift more than 20 pounds. Instead of accommodating her, UPS forced her to go on unpaid leave.
UPS only changes employees’ assignments if they are disabled, but, according to Jeff Nowak for FMLA Insights, the EECO is having none of that.
[T]he federal government filed a “friend of the court” brief indicating that the EEOC is planning to adopt new enforcement guidance on pregnancy discrimination and accommodation that would address a range of issues related to pregnancy under the Pregnancy Discrimination Act and the [Americans with Disabilities Act]. … According to the EEOC, in light of the fact that ADA regulations no longer require a specific durational requirement for an impairment to meet the definition of a “disability” under the ADA, it is expected that greater numbers of pregnant women will be able to seek protection under the ADA.
While there’s been a decrease in pregnancy discrimination charges filed with the EEOC from 2010 to 2013, employment lawyer Richard Cohen noted that this still remains a large enough issue for the EEOC that they’re really cracking down on employers.
[W]hen the EEOC closed fiscal year 2013, it appeared to us that of the lawsuits filed in the last year by the EEOC, two areas stand out: more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims.
The message to employers is to accommodate your pregnant employees or face a discrimination suit – and sending pregnant women home when they’re able to work doesn’t count as an accommodation. Cohen cautions that this also includes making assumptions about women’s health as well.
[T]he EEOC is serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA) – very serious – especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child.
The EEOC isn’t the only one taking pregnancy discrimination claims seriously. So far, 10 states have passed their own anti-discrimination laws, as well as New York City and Philadelphia, according to Lily Sturmwasser of Seyfarth Shaw.
New York City and Philadelphia enacted laws requiring employers to provide a reasonable accommodation to pregnant women and those who suffer conditions related to pregnancy and childbirth. … Employers that do not provide pregnant employees with a workplace accommodation will have the burden of proving an “undue hardship.” Various factors are considered and generally mirror those found in the ADA, focusing on whether the accommodation will cause significant difficulty or expense.
With the number of women in the labor force expected to increase by 5.4 percent by 2022, regulatory agencies and employers need to be primed with how to accommodate temporary conditions.