Thursday, June 12, 2014

New Protections For Pregnant Workers

The gender wage gap continues to stir controversy and confound lawmakers, and many state legislatures and local governments are trying to find ways to make it easier to be a working woman, and, in particular, a working mom.  One of their solutions?  Requiring employers to better accommodate pregnancy.

Under Title VII and most state anti-discrimination laws, pregnancy falls within the definition of sex discrimination and cannot be the basis of discrimination. In addition, serious health complications of pregnancy – such as conditions requiring bed rest or hospitalization – may qualify as disabilities under the Americans with Disabilities Act (ADA) or similar state laws that afford protection from discrimination. The physical effects of a healthy pregnancy, however, such as morning sickness, fatigue, backaches and joint pain, and the need to take frequent bathroom breaks, are not covered by either sex discrimination laws or disability discrimination laws. It is these common, temporary limitations that the wave of new legislation is intended to address.

In Minnesota, for example, under the newly enacted Women’s Economic Security Act (“WESA”), employers with more than 21 employees must now provide reasonable accommodations to pregnant workers. AlaskaCaliforniaConnecticut, Louisiana, Maryland, New Jersey, Hawaii, Illinois, Texas, and the cities of Philadelphia and New York City have all passed similar legislation.  The accommodations contemplated by these new laws differ, but many include allowing more frequent rest breaks and bathroom breaks, permitting workers to perform tasks while seated, transfers to less strenuous or hazardous positions, and light duty. 

At the federal level, the Equal Employment Opportunity Commission recently announced that it intends to issue new guidance on pregnancy discrimination under the Pregnancy Discrimination Act. While we don’t yet know exactly what this new proposed guidance will be, employers should be prepared to follow the issue closely; it seems likely that the new guidance will expand protections for pregnant workers covered by Title VII and the PDA.

So what should employers do?  First, remember to greet the news of an employee’s pregnancy as good news.  Second, prepare to accommodate an employee’s pregnancy by giving thoughtful consideration to requested accommodations.  It is perfectly acceptable to also consider the needs of your organization, of course, and to seek a solution that balances the two interests.  Work with the employee to find solutions to her temporary limitations. These will depend on the circumstances of each workplace and could include the accommodations described above or other options – like providing a stool to a cashier or production line employee, allowing flexible start times for an employee experiencing morning sickness, or temporarily modifying your dress code.

Posted by: Kate Bischoff