Pregnancy Discrimination Claims Grow

With expanded participation of women in the workforce, there is a need to adapt the workplace to pregnant and breast-feeding workers. Enacted in 1978, the Pregnancy Discrimination Act banned employment discrimination on the basis of pregnancy, childbirth or related medical conditions. Most employers are aware that the Equal Employment Opportunity Commission (EEOC) defines “pregnancy discrimination” as “treating a woman unfavorably because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.”  Employers can’t discriminate on the basis of pregnancy by refusing to hire, train, promote or provide equal pay, insurance or other benefits because of an employee’s pregnancy.  Nor can an employer discriminate against a pregnant worker or applicant because of customer, co-worker or client prejudice.

In 2008, Congress amended the Americans with Disabilities Act (ADA) by extending legal protection to temporary impairments of “major life activities.” Although pregnancy is not a “disability,” temporary medical complications resulting from pregnancy, such as severe nausea, gestational diabetes, post-partum depression, etc., may constitute “disabilities” within the meaning of the ADA.  If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the EEOC expects the employer to treat her in the same way as other temporarily disabled employees.

In recent years, the EEOC increased attention on whether employers were engaged in an “interactive process” to explore reasonable accommodations for employees temporarily disabled by pregnancy-related medical complications.  Temporary reasonable accommodations might include rescheduling early-morning meetings, reassigning shifts or making other work adjustments that enable the employee to perform her job while pregnant.  Employers need not adopt a requested accommodation that poses “undue hardship” to the employer.

Even healthy employees who are not “temporarily disabled” may have pregnancy-related conditions that challenge their ability to work.  A glance at any online forum for pregnant employees demonstrates that healthy, pregnant employees juggle work needs with concerns for the health of their child and themselves.  Employees who do not qualify for legally mandated accommodation may request leave to avoid work environments they fear pose potential hazards to their pregnancy.

Pregnant employees who qualify for leave under the Family Medical Leave Act (FMLA) are entitled to 12 weeks unpaid leave because pregnancy is a “serious health condition.”  New mothers usually want to reserve some of their 12-week FMLA leave to care for their newborn. If an employer can accommodate weight-lifting restrictions temporarily to permit a pregnant employee to work longer during her pregnancy, both the employer and employee benefit.

The 2010 Patient Protection and Affordable Care Act also promotes accommodation by requiring employers to provide both private space (other than a bathroom) and unpaid break time for one year after birth for expressing breast milk.  Employers of fewer than 50 employees may gain exemption by proving compliance would impose an “undue hardship.”  The Act does not pre-empt state laws that mandate greater accommodation.

Maria C. Walsh, Esq. is a full-time mediator and arbitrator with JAMS, based in Boston. She has years of experience resolving employment, business, intellectual property, construction and insurance disputes. She can be reached at mwalsh@jamsadr.com.