How To Avoid Pregnancy Discrimination Claims

The EEOC has had pregnancy discrimination on its radar screen for a while. A Supreme Court case, Young v. UPS, will likely bring more attention to the issue.

Many laws and regulations affect pregnancy and discrimination, disability, leave and accommodations. With women now comprising 47 percent of the U.S. labor force, at some point your HR department will likely have to determine how they apply to one of your employees. Following these guidelines should help you avoid pregnancy
discrimination claims.

The Pregnancy Discrimination Act (PDA) of 1978 extended protections under Title VII of the Civil Rights Act of 1964 to women who are pregnant or have related medical conditions. This makes employment discrimination based on pregnancy, childbirth or related medical conditions a prohibited form of sex discrimination. The PDA applies to all areas of employment: from hiring, determining promotions, qualifying for benefits and allowing accommodations for pregnancy-related disability.

What Employers Need to Know

You probably already know that you cannot take “adverse employment actions” against an employee due to her pregnancy or possibility of becoming pregnant. That includes firing or failing to promote, and failure to hire someone on the basis of pregnancy (or the possibility of becoming pregnant). But you might not know some of the other actions that the EEOC considers discriminatory. Here’s a partial list from a recently issued EEOC guidance:

Light-Duty Work

• An employer has to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work.
• An employer may not limit a pregnant worker’s access to light duty based on the source of her impairment (e.g., it may not deny light duty to a pregnant worker based on a policy that limits light duty to employees with on-the-job injuries).
• However, if an employer’s light duty policy restricts the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, if it applies the same restrictions to other workers similar in their ability or inability to work.

Job Restrictions

: An employer cannot restrict a pregnant woman from certain job duties, such as working with hazardous chemicals, unless it also restricts non-pregnant employees. This applies even if the employer is trying to avoid fetal injury and has the employee’s best interests at heart.
Leave:

• Employers cannot compel an employee to take leave because she is pregnant, as long as she is able to perform her job. However, they must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as other similarly situated individuals.
• Employers cannot require employees disabled by pregnancy or related medical conditions to exhaust their sick leave before using other types of accrued leave, unless they impose the same requirements on employees seeking leave for other medical conditions.
• Employers cannot impose shorter maximum leave periods for pregnancy-related leave than for other types of medical or short-term disability leave.
• Title VII does not require or allow an employer to provide more favorable leave terms to pregnant employees than it does for other employees. For example, an employer cannot provide six months’ paid parental time for mothers to bond with their new babies if it does not also provide similar benefits for fathers.

Disability/ADA Accommodations

Pregnancy on its own never creates a disability that triggers an employer’s responsibilities under the Americans with Disabilities Act (ADA). If an employee develops a pregnancy-related disability, you must treat her the same as you would any other disabled worker. That means providing “reasonable accommodations” that allow her to continue to work. It also means allowing—but not requiring—pregnant employees to use leave available under the Family and Medical Leave Act (FMLA) and other leave laws.

In 2011, the U.S. Equal Employment Opportunity Commission (EEOC) received 5,797 complaints of pregnancy discrimination. Claimants received $17.2 million in benefits that year. This does NOT include money they received from litigation, which could total many millions more.

It therefore pays to know the employment laws that apply to any given situation. If you don’t, please consult an employment practices attorney.

Do You Have the Right Kind of Insurance?

Because employment law is always changing, it also pays to protect your organization with employment practices liability insurance, or EPLI. Your commercial general liability or business owner’s policy excludes coverage for employment-related actions. EPLI coverage fills this important gap. It covers your legal defense costs if an individual brings a discrimination or other employment practices claim against the firm, plus any resulting legal settlements.

Buying EPLI coverage also gives you access to expertise that smaller firms usually lack. When you file a claim, your insurer will assign an attorney who has expertise in that type of claim to your case. This will help bring your case to resolution sooner, so you can get back to business.