16 JULY / AUGUST 2020 HUMAN RESOURCES Pregnancy Discrimination A reminder for employers Employers have faced unprecedented challenges in 2020. Apart from topics that dominate the news, employees must continue to be mindful of compliance with various laws, including the Pregnancy Discrimination Act. The PDA prohibits employment discrimination based on pregnancy with regard to any term, condition or aspect of employment, including hiring, termination, pay, benefits, promotions, training or job assignments. Pregnancy discrimination means treating a female (applicant or employee) unfavorably because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth. Last year, nearly 3,000 pregnancy discrimination cases were filed with the Equal Employment Opportunity Commission. The EEOC is the federal administrative agency responsible for interpreting and enforcing federal anti-discrimination laws and is authorized to bring lawsuits on behalf of victims of discrimination. In 2019 the EEOC reported a record high $22.5 million in settlements of pregnancy discrimination claims. The charges of discrimination included allegations that: supervisors made negative or discriminatory comments about pregnant employees; and pregnant employees were retaliated against with poor performance reviews, were denied leadership positions or promotions, or were not accommodated when they presented work restrictions. The EEOC recently sued an employer (and its staffing company for going along with the employer’s actions) for terminating newly hired pregnant employees, because the employer assumed the employees would not meet the employer’s attendance policy. A growing list of states (Indiana is not one of them, although legislation has been proposed) have passed laws in recent years broadening the scope of protections for pregnant employees and applicants by requiring employers to engage in an interactive process to assess potential reasonable accommodations for health conditions related to pregnancy and childbirth that may not separately qualify as a disability. Reasonable accommodations may include: • Frequent or longer bathroom breaks; • Temporary light duty assignments or temporary transfer to a less strenuous or hazardous position, if available (with return to work after pregnancy); • Part-time or modified work schedules; • Periodic rest breaks; • Modifying equipment or seating; • Assistance with manual labor such as lifting, pulling or pushing. Many of the laws were enacted in the wake of Young v. United Parcel Serv., Inc., 575 U.S. 206 (2105), in which the U.S. Supreme Court provided a framework for pregnant employees challenging workplace accommodation policies and practices. In Young, a delivery driver (whose doctor imposed lifting restrictions) sued for pregnancy discrimination, after the company denied her request for a temporary light duty assignment, even though the company had regularly offered that same accommodation (or other accommodations) to workers who were injured on the job or who had disabilities. The Court held that a pregnant employee could show a prima facie case of disparate treatment by showing that she is pregnant, sought an accommodation, the employer did not accommodate her, and the employer accommodated others “similar in their ability or inability to work.” Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association.
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