‘New’ protected category: pregnant workers

By Bobbie Fox CopperPoint Mutual Attorney Employment law news for employers has been filled with discussion about the “new” protected category prohibiting discrimination against pregnant workers. Workers have been protected against discrimination on the basis of pregnancy for 35 years by the Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act.  So what changed? Vigorous enforcement by the EEOC for one thing. Recently, the EEOC filed suit against Shipley’s Do-Nuts in Texas, alleging the employer discriminated against a worker when it forced her to take unpaid leave after the manager heard a rumor and suspected she was pregnant. When confronted, the worker refused to tell her manager if she was pregnant and the manager in turn refused to schedule her for work until she was cleared by a doctor. She was then terminated for failing to report to work. In discussing another pregnancy discrimination suit, an EEOC attorney explained, “Employers have a duty to respect the ability of pregnant women to participate in the workforce. The EEOC is committed to enforcing the law when employers fall short of this duty.” Assumptions and stereotypes EEOC guidance on pregnancy discrimination is also new, explaining to employers their duties to pregnant workers. This nearly 47-page guidance with footnotes provides many examples of the ways an employer can run afoul of the law in its treatment of pregnancy workers. A couple of ways that should be obvious is that you cannot refuse to hire a woman because she is pregnant and you cannot treat a pregnant woman adversely based on the stereotype that she cannot work or that she will leave her job after the child is born. Less obvious is the EEOC’s pronouncement in its guidance that a business must provide light duty work to a pregnant worker if it offers light duty to employees injured on the job or other employees who have disabilities or illnesses. For example, if you provide a light duty assignment for an injured worker so he or she doesn’t have to meet the job’s lifting requirements, you must also provide that light duty to a pregnant worker in the same manner. This light duty standard is a common practice for injured workers, but much less common for pregnant workers. Do employers have to follow the EEOC guidance and offer light duty to pregnant workers? Maybe; the law is unclear right now. Following the guidance may keep you out of trouble, and it may help you retain an employee who needs a temporary accommodation. We may not have to wait long to see whether this standard is the law of the land. The U.S. Supreme Court is ready to rule in Young v. UPS, and with any luck the court will answer this question. In Young, the UPS delivery driver Peggy Young claimed the company discriminated against her when it refused to accommodate her lifting restrictions, even though her doctor prescribed these restrictions. Young was forced to take unpaid leave and lost medical coverage. UPS allowed other workers light duty but did not provide it to Young. The court’s ruling hopefully will tell employers whether they have to offer light duty to pregnant workers under federal law. Workers’ rights and state laws State laws also can provide other rights to pregnant workers. For example, Illinois has adopted a Pregnancy Fairness Law, providing workplace protection to pregnant mothers. This law applies to all employers regardless  of size, unlike he federal Pregnancy Discrimination Act, which applies to employers with 15 or more employees. Employers there cannot discriminate against applicants and employees on the basis of being pregnant and requires companies to accommodate pregnant workers unless doing so would constitute an undue hardship to the company’s  operations. What’s an employer to do? As usual, be cautious. Don’t jump to conclusions about whether a pregnant worker (or anyone else) can work based on a medical condition, based on a pregnancy, or based on a stereotype and be cautious when requesting a medical note. A good rule of thumb is to treat workers in similar situations similarly. In other words, if you have light duty for any employees, offer it to a pregnant worker who also needs a temporary accommodation.  And if in doubt, ask your lawyer.

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