Women comprise over half the American workforce, and that number increases annually. While sexual harassment and gender equity issues often garner more attention, how to deal with a pregnant employee who may have work limitations continues to vex employers. It’s an issue that’s often a source of consternation, and if improperly handled, could result in legal liability to employers.
In 1978, Congress passed the Pregnancy Discrimination Act (PDA), which established that pregnancy-related matters are encompassed within the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964. In essence, it requires employers to provide the same accommodations to pregnant women as any other employee with similar ability or inability to work. In addition to federal law, almost 50% of the states and numerous cities have adopted regulations requiring employers to provide work accommodations for pregnant employees. Accommodations for pregnant employees have been an enforcement priority for the Equal Employment Opportunity Commission (EEOC). It was identified as a “National Substantive Area Priority” under the 2017-2021 EEOC Strategic Enforcement Plan.
The Americans with Disabilities Act (ADA) also imposes certain employer obligations regarding pregnancy. Generally, the ADA requires employers to provide reasonable accommodation to employees with a “disability” that affects their ability to perform their job. While pregnancy is not a disability, numerous pregnancy-related conditions qualify as disabilities requiring employers to potentially provide accommodation.
The ADA Amendments Act (ADAAA) passed in 2009 expanded the definition of a “disability.” Thus, pregnancy-related impairments might more easily qualify as “disabilities” today than before the amendments. For example, the following pregnancy-related conditions could constitute a disability under the ADAAA: anemia, depression, gestational diabetes, morning sickness, preeclampsia, and swelling of the feet and legs.
The Supreme Court addressed employers’ responsibility to accommodate pregnant employees in 2015. In the case of Young v. UPS, the Court ruled in favor of a pregnant UPS driver who challenged UPS’ denial of light duty work assignments during pregnancy to accommodate her lifting restrictions. UPS had successfully argued before the lower courts that light duty was properly reserved for employees injured on the job and that pregnancy was not similar. The Court concluded that an employer is required to offer a reasonable accommodation to a pregnant employee to the same extent that it offered an accommodation to any other employee that was similarly limited.
In 2019, the House of Representatives proposed a bill entitled "The Pregnant Workers Fairness Act" with the stated purpose of clarifying the ruling in the Young v. UPS case. It was contended that despite the provisions of the PDA and the Young decision, similar situations of pregnant employees denied accommodation continued to arise in many workplaces. According to Gillian Thomas, a senior attorney with the ACLU’s Woman’s Rights Project, “[r]oughly a quarter of a million women a year do not get the accommodations they need to keep working.” She noted despite the clear legal requirements, pregnant women are still being forced off the job. Had the proposed law passed, it would have mandated employers utilize the “interactive process” to determine what reasonable accommodation(s) can be offered to pregnant workers, which is the same framework required under the ADA.
Notwithstanding claims of continued employer failures to accommodate pregnant employees, the requirements under the relevant legal authorities is clear. For current pregnancy, an employer cannot fire, refuse to hire, demote, or take other adverse action against a woman motivated by pregnancy, childbirth, or related medical condition. This is true even if the employer believes it is acting in the employee’s best interest. Similarly, an employer may not discriminate based upon an employee’s intention or potential to become pregnant. Nor may an employer force an employee to take leave because she is pregnant. If the employee is limited in the performance of her job duties and is entitled to accommodation under the PDA or ADA, an employer may need to provide reasonable accommodation.
Not all pregnant employees develop limitations affecting their ability to perform their job. However, when limitations do arise, employers should carefully consider the following questions:
- What limitations is the employee experiencing?
- How do these limitations affect job performance?
- What are specific tasks that pose a problem?
- What accommodations could reduce or eliminate the job performance issues?
The broad categories of functions that can be affected by pregnancy-related limitations include bending, carrying, climbing, kneeling, lifting, pushing and/or pulling, sitting, standing, temperature sensitivity, toileting or grooming issues, and dietary needs.
Among the types of accommodations employers should consider to address pregnancy-related limitations are: reassigning marginal or nonessential job functions that pose a problem for the pregnant employee; modifying a work schedule; modifying workplace policies, such as allowing a pregnant employee more frequent breaks; temporarily reassigning the employee to light duty; and granting leave.
In light of the continuing focus on employer workplace obligations to pregnant employees, defending a claim of failure to accommodate a pregnant employee’s job limitations may prove increasingly difficult for employers. Such claims are clearly a priority for EEOC enforcement and can become quite high profile and every employer should diligently seek to avoid them.