In the UNorton Rose Fulbright: Pregnancy Discrimination: A Hot Topic for 2015nited States, the Federal Pregnancy Discrimination Act (“PDA”) has long forbidden an employer with fifteen or more employees from pregnancy-related discrimination. 42 U.S.C. § 2000(e) et seq. Similar laws have likewise long existed in many states and cities. See, e.g., Minn. Stat. Ch. 363A (sex includes pregnancy).

But 2014 developments raised the stakes, with increased federal agency enforcement efforts, new laws, and federal guidance.

Last year started with pregnancy discrimination being a hot topic, as New York City joined the ranks of governments with robust pregnancy-discrimination laws.

As of January 30, 2014, the New York City Human Rights Law (“NYCHRL”) not only prohibits pregnancy-related discrimination by even the smallest of employers (four or more employees), but also, it requires employers to provide written notice to employees of the prohibition against pregnancy-related discrimination (see the poster) and to make broad pregnancy-related reasonable accommodations. See NYC Commission on Human Rights – Amendments, Jan. 30, 2014.

Potential accommodations include: water and bathroom breaks; leave for any pregnancy-related disability; periodic rest for workers who stand; and assistance with manual labor.

Several courts have found NYCHRL’s reasonable accommodation requirement to be essentially limitless. See, e.g., Phillips v. City of New York et al., 66 A.D. 3d 170, 182, 884 N.Y.S.2d 369, 378 (1st Dep’t. 2009) (“[T]here is no accommodation . . . categorically excluded from the universe of reasonable accommodation.”) (rejected on other grounds by Jacobsen v. New York City Health and Hospitals Corp., 988 N.Y.S.2d 86, 22 N.Y.3d 824 (2014)).

Moreover, the employer’s defenses (e.g., economic hardship) are limited and can be difficult to establish.

Last year, the federal government was likewise active. On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”).  See US EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues.

The Guidance, although not law, is important because some courts may give it deference. Among other things, the Guidance arguably seeks to expand an employer’s obligations by requiring an employer to treat pregnant employees the same as similarly-situated employees injured on the job.

The EEOC suggests employers:

  1. develop and implement strong policies and practices;
  2. develop and implement specific, job-related qualifications that minimize potential pregnancy-related discrimination; and
  3. evaluate restrictive leave policies to ensure that leave is a reasonable accommodation and that any policy disproportionately impacting pregnant workers satisfies the “business necessity” test.

Employers are also encouraged to reassign job duties temporarily and provide lactating employees with “the same freedom” others with “similarly limiting medical conditions” have.

The Office of Federal Contract Compliance Programs (“OFCCP”) in the US Department of Labor also entered the arena, issuing a January 2015 notice of proposed rule-making relating to new pregnancy-related regulations for federal government contractors. See 41 C.F.R. Part 60-20; OFCCP Proposes Updated Sex Discrimination Rules, US Department of Labor.

Litigation has been hopping as well.  The US Supreme Court heard argument on December 3, 2014 in Young v. United Parcel Service, a case raising whether and when the PDA requires employers to provide pregnant employees with work accommodations given to non-pregnant employees “similar in their ability or inability to work.” See Petition for a Writ of Certiorari at 2, Young v. United Parcel Service, Inc., No. 12-1226 (S.Ct. 2013).

At oral argument, the Court seemed deeply concerned about how the delivery company determined which employees get light duty, which don’t, and what justifies the difference. See Young v. United Parcel Service, Inc. – oral argument audio, US Supreme Court Media – Oyez Scholars.

Regardless of what the Court decides, this decision should provide further PDA and reasonable accommodation guidance.

As for EEOC litigation, no industry is immune. Since 2011, the EEOC has pursued pregnancy-related lawsuits against all workforce sectors including: agriculture; energy; healthcare; manufacturing; pharmaceutical; retail; technology; and wholesale supply. See Fact Sheet on Recent EEOC Pregnancy-Discrimination LitigationUS EEOC, updated September 24, 2014.

These lawsuits raise failure to hire, promotion, demotion, opportunity, unequal treatment, and termination issues, and the EEOC has prevailed.  See, e.g., EEOC v. Houston Funding, 717 F.3d 425 (5th Cir. 2013) (federal law prohibits discharging a worker because she was lactating).

It has also obtained consent decrees requiring companies to rescind or revise pregnancy policies, do specific training, make periodic reports, and provide not-insignificant monetary relief.

The EEOC’s focus is no surprise, as its current Strategic Enforcement Plan identifies six national priorities including “Addressing Emerging and Developing Issues,” of which pregnancy-related accommodations is one.  See US Equal Employment Opportunity  Commission Strategic Enforcement Plan, FY 2013 -2016.

In short, pregnancy discrimination is a hot subject in the US, and prudent employers will study new legal developments, examine and revise applicable policies, and implement best practices, including effective training to minimize liability exposure.

Stay tuned. It should be an interesting year.

 

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