Pregnancy Discrimination

As of April 1, 2018, employers in Massachusetts will be required to provide accommodations to pregnant employees.

In July, the Governor signed into law the Pregnant Workers Fairness Act that amends the Massachusetts’ general discrimination law to require employers to provide a reasonable accommodation to pregnant employees and to prevent employers from discriminating against pregnant employees who request an accommodation.

Under the law, there is no set guarantee of leave, but paid or unpaid leave to recover from childbirth may be a reasonable accommodation.

Other accommodations listed in the law may include:

  • more frequent or longer paid or unpaid breaks;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • modified work schedules; provided, however, that no employer shall be required to discharge any
    employee, transfer any employee with more seniority, or promote any employee who is not able
    to perform the essential functions of the job, with or without a reasonable accommodation.

Employers do not have to provide an accommodation if doing so would create an undue hardship.

The law also poses some limits on the documentation that can be required from employees.  Generally, employers may require documentation to support a request for an accommodation, except when the employee is requesting one of the following accommodations:

  1. more frequent restroom, food and water breaks;
  2. seating; and
  3. limits on lifting over 20 pounds.

Employers will be required to give a written notice to employees of their rights beginning on January 1, 2018.  Employers will have to give such notice to any new hires after that date and to any employee who requests an accommodation.

As I was getting ready for work this morning, the Today Show had a profile of Marissa Mayer, CEO of Yahoo, who announced that she was expecting twins.  The profile noted that when Mayer had her first child, she declined Yahoo’s (rather generous) Maternity Leave Policy and took only one week off from work.  The panel on the show debated whether a company’s chief executive was setting a poor example for new moms in her employ by declining a maternity leave.

I had a interesting perspective on the issue as I watched the segment with my wife, a junior management employee at a Fortune 500 company who is currently on maternity leave with our own 7 week old twins.  My better half harshly criticized Mayer, saying that her decision would have a chilling effect on Yahoo employees.  Would they get a message though their CEO’s actions that taking maternity leave is bad for their career?

Maybe yes, maybe no. Listen, companies cannot force new moms to take their full maternity leave.  It is an employee benefit that, like all benefits, can be accepted or declined.  But what companies can do is reinforce the message that new mothers (and dads) availing themselves of a paid leave policy will not be subject to retaliation or any other adverse employment actions.  This can be easily outlined in an employee handbook or, if applicable, at an exit interview before the leave.  Conversely, it should similarly be stressed that declining a postnatal leave is not the avenue to advancement in the company.

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Feel free to contact our Labor and Employment Department if you wish to have your Policies and Procedures reviewed on this or any other issue.

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
Mention code: EA1DU2-4TO1AY

36714348_sAlthough the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close.  The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.

The Complaint alleges that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant.  However, this is not a simple case of an employee being terminated because she was pregnant.  The complaint alleges that employees who were pregnant were required to provide a written medical release assuring the company that they did not have a “high-risk” pregnancy and that it was safe for the employee to perform the normal job duties.  The EEOC also alleges that this medical release was required even in situations where employees did not request any type of accommodations or disclose that there were any medical issues related to the pregnancy.

When rumors spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant.  She refused to confirm that she was in fact pregnant.  Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance.  Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note.  Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.

This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act  — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children.  Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.

A related lesson for employers is that the general rule under the Americans with Disabilities Act regulations is that an employer cannot require an employee to provide medical information unless the request for information is job-related and consistent with business necessity.  In the absence of a request for accommodation or some indication that the employee is actually unable to perform job duties on account of a medical condition, employers may violate the ADA by requiring medical information.

In our post about the recent New York Times’ article, which we entitled The Motherhood Trade-Off, we noted that “the authors write about why working women in the US find it more difficult to return to work after having kids than their European counterparts.”

Link:  http://www.nytimes.com/2014/12/14/upshot/us-employment-women-not-working.html?ref=business&abt=0002&abg=0)

maternity leave : Stressed Woman With Newborn Baby Working From Home Using Laptop

We publish below some interesting comments on the post from knowledgeable folks around the world:

Danielle Hartmann, an HR specialist in the Basel area of Switzerland:

“Thanks for sharing this article.  As someone who recently relocated from the US to Switzerland, it is interesting to observe and live the differences in culture and work environments as they relate to career and family. Organizations can approach these issues differently depending on the outcome they seek (increase women’s workforce participation or increase women’s equality within the workforce). One set of policies will not necessarily help achieve the other.”

Paula Fonseca, a talent recruiter in the Salvador area of Brazil:

“Hi Richard, thank you for sharing. The lack of family friendly policies in the workplace is certainly one of the top reasons keeping out of the job market women who want a career.  I understand the U.S. is currently discussing paid maternity leave, but I live in a country that offers 6-month paid maternity leave and it is clear that it is not enough.

I was explaining to a friend from England this weekend how paid maternity leave impacts on the gender gap. I have been hearing from a lot of women around their 30’s and recently married about how hard it is to get a job or to get a promotion because employers presume that they will have kids soon and theirs projects at work will be left unfinished. This is one of the reasons why I defend equal time of leave for mothers and fathers.

Besides, giving mothers a different time of leave speaks about how we still think of child care as being a women’s duty and we all know this is not what we have been seeing in reality.”

David Bensman, a professor in the Department of Labor Studies and Employment Relations at Rutgers University:

“The article states that women leaving the paid labor force include both women with children and younger women without children. The article doesn’t say much about why young women are leaving the labor force.  

I would guess that unstable schedules are one reason, since they make it hard for people to continue their education. They also drive some young people into the informal labor market, so they’re not counted in the paid labor force.

In addition to unstable schedules, I think that the economic downturn that began in 2008 drove young people out of the labor force and discouraged many of them from trying to reenter. In addition to unstable schedules, the lack of family friendly policies on the part of governments and many employers also has driven women out of the paid labor force.

It is hard to believe that fewer American women are working for pay than are Japanese women, but that’s what the OECD data say.”

Lisa Hutchin, a labor relations specialist in Sacramento, CA:

“Many of us baby-boomers found ourselves in the unenviable position of having strangers rear our children while we dutifully went off to work (hooray, Women’s Lib). In retrospect, I would have much rather spent my time with my children, watching them take their first steps, play in the sandbox, grow.   Undoubtedly, young mothers today would like to do the same.

However, this all comes at a price. In countries where paid maternity leave is prevalent, I am certain that taxes are higher and/or the cost of goods and services are higher in order to offset the price tag of paid time off.   Are U.S. taxpayers willing to pay for this?  I doubt it.”

 

 

 

In a New York Times article today variously entitled “Why U.S. Women Are Leaving Jobs Behind,” or “The Flexibility Gap,” the authors write about why working women in the US find it more difficult to return to work after having kids than their European counterparts. 

“The Motherhood Trade-Off,” they sub-title the article, and describe the “lack of family-friendly policies” in the US.   

motherhood career : stressed african american businesswoman in office holding her little girl while talking on telephone

They begin with a young woman in Washington State, and note that “Her story would have played out differently, she said, if she had been living in her native England. Like many European countries, Britain offers a year of maternity leave, much of it paid, and protections for part-time workers, among other policies aimed at keeping women employed.”

They also note that “As recently as 1990, the United States had one of the top employment rates in the world for women, but it has now fallen behind many European countries. After climbing for six decades, the percentage of women in the American work force peaked in 1999, at 74 percent for women between 25 and 54. It has fallen since, to 69 percent today.  In many other countries, however, the percentage of working women has continued to climb.”

Interesting but disturbing reading.  

Link:  http://www.nytimes.com/2014/12/14/upshot/us-employment-women-not-working.html?ref=business&abt=0002&abg=0

There are two takeaways in today’s post.

First:  Beating a dead horse, we are constrained to remind health care and medical providers, yet again, that the EEOC continues to target you for ADA violations, or (in the case we will discuss), Title VII pregnancy violations; and

Second:  Be aware that Title VII, a “make whole” statute, provides for possible remedies that include, besides monetary awards, reinstatement.  Employers forget that.    

welcome back to work : Welcome back to school writen by chocolate pencils on line paper - realistic illustration with perspective and deep of field Stock Photo

This post is prompted by a an EEOC announcement of a consent decree in a Title VII lawsuit against an Illinois rehab center which provides short- and long- term medical and rehabilitation care located in suburban Bridgeview, Ill.   The EEOC alleged that the administrator of the center, after learning that a staff social worker was pregnant, reduced her hours and then fired her while she was on maternity leave. 

The consent decree “provides for reinstatement of the employee and monetary compensation in the form of a salary adjustment and repayment of nursing school loans.  In addition, the consent decree requires [the center] to report to the EEOC for the next two years on all employee complaints of pregnancy discrimination.  The company must also train all its employees at this location on the prevention and eradication of pregnancy discrimination.”

Link:  http://www.eeoc.gov/eeoc/newsroom/release/12-11-14.cfm.

“Reinstatement” (and a commensurate salary adjustment) is what we want to highlight about the consent decree, since it is not often that a company, or the former employee, agree to it (virtually all EEOC settlements and consent decrees contain provisions requiring anti-discrimination training, and EEOC oversight for a period of time – usually a couple of years).     

In any event, the EEOC noted that “Pregnancy discrimination remains a problem.  In too many workplaces too many times, employers are too quick to determine that the pregnant employee is the expendable employee.  But we’re pleased with the result here.  It includes getting the employee back on the job and positioned to progress in her career.”

 

Law360 has just reported that a jury in California has awarded $872,000 in compensatory damages and a whopping $185 million in punitive damages (more than was requested) to a plaintiff who claimed gender discrimination and retaliation in that “she was fired after complaining that she was demoted after giving birth.”

money : stack of dollars

The link to the Law360 story is:

http://www.law360.com/employment/articles/597232?nl_pk=03fa444f-5ac1-4329-814d-34d1f626de74&utm_source=newsletter&utm_medium=email&utm_campaign=employment

Just a short posting today, apropos of yesterday’s post from Australia, in wbich we wrote about surveys finding that in the workplace there were “[pregnant] women who were asked to make a choice – the job or the baby.”

We want to underscore for employers in the US the EEOC’s resolve to go after pregnancy discrimination cases.

A new such case was filed by the EEOC accusing a Michigan bar and grille of refusing to hire an applicant for a server position when she disclosed that she was pregnant.

waitress : Illustration of a wiatress with tray

The EEOC said, yet again, that “Women should not be forced to remove themselves from the labor market simply because they are pregnant.  The EEOC will vigorously enforce a pregnant woman’s right to be fairly considered for a job.”

 

 

This is a sad commentary about the extent of entrenched discriminatory animus in a nation that, in fact, prohibits pregnancy discimination in employment.

We have just read in the Daily Mail Australia that the Australian Fair Work Ombudsman has reported that pregnancy discrimination makes up — by far  — the largest number of employment discrimination claims – 47%.  This is an increase from 28% in 2012-13.

The Mail reports that disability claims came in second at 20%, and “family and carer’s” discrimination claims was at 10%.

pregnant employees : Sick woman in the office

The Australia Sex Discrimination Commissioner similarly found in her surveys that “half of working mothers experience discrimination.” She noted that “I met women who were asked to make a choice – the job or the baby. The underlying implication was if you want to keep your job you need to terminate your pregnancy. And I met women who had terminated their pregnancy as result of that.”

Australia’s Fair Work Act is similar to Title VII but somewhat broader — it prohibits employment discrimination on the basis of pregnancy, race, color, sex, sexual preference (not in Title VII), age (in the ADEA), physical or mental disability (in the ADA), marital status, family or “carer” responsibilities (not in Title VII), religion, political opinion (not in Title VII), national extraction, or social origin (unclear to us what this is).

Like the US EEOC, the Australia Fair Work Ombudsman stressed that pregnancy discrimination will be taken seriously: “We want to increase awareness that discriminating against pregnant women is a serious breach of workplace laws and won’t be tolerated.”

The EEOC recently said that “Combating pregnancy discrimin­ation remains a priority for this office and we will continue to work to eliminate it until it is no longer an issue.”

And on September 23rd we blogged about three new pregnancy discrimination lawsuits filed by the EEOC which demonstrate that the EEOC is indeed serious about pursuing its new agenda set forth in the Enforcement Guidance on Pregnancy Discrimination and Related Issues.