Articles Posted in Pregnancy (Title VII)

By Lauren E.M. Russell

In Young v. United Parcel Service, Inc., the Supreme Court interpreted the language of the federal Pregnancy Discrimination Act, which requires that employers treat pregnant employees in the same manner as other individuals who are similarly limited in their abilities. Among the Court’s conclusions is that a policy that provides job-related accommodations to those who are injured on the job and those who have disabilities governed by the Americans with Disabilities Act may also have to be extended to pregnant employees with physical restrictions. The decision opens a lot of questions, but Delaware employers may have a leg up in compliance!

The Court’s Decision

In Young, the Court addressed the case of a young woman who became pregnant after having several miscarriages. In connection with her pregnancy, her doctor placed her on a lifting restriction. UPS informed Young that it could not accommodate her lifting restriction, and she was placed on unpaid leave. Young eventually lost her employer-sponsored health coverage, and filed suit against UPS for pregnancy discrimination.

UPS readily acknowledged that it refused to provide an accommodation to Young. It also acknowledged that it routinely provides accommodations to employees: (1) with a work-related injury; (2) who have lost their Department of Transportation certification; or (3) who have a disability within the meaning of the Americans with Disabilities Act, as amended. Historically, UPS’s policy would not have been a problem. As we all know, pregnancy is not, in and of itself, a disability. In addition, EEOC regulations have long held that an employer could have a policy that provided reasonable accommodations to work-related injuries, but denied such accommodations to similarly limited pregnant employees. The purpose of this carve-out is to allow employers to avoid workers’ compensation costs by putting injured employees back to work on light duty.

So what changed? The EEOC has changed its stance on pregnancy. Under the Americans with Disabilities Act Amendment Act, many more limitations now qualify as disabilities, including fertility problems. In addition, the EEOC has made clear that it will be targeting systemic discrimination, including pregnancy discrimination, over the coming years. In connection with this change, the EEOC has just issued a Notice of Proposed Rule Making, and we can expect new regulations with respect to pregnancy within the next year or two.

Setting those developments aside, the Supreme Court did not rule that UPS’s policy was unlawful. Instead, it simply ruled that the trial court had to consider whether there was a legitimate, non-discriminatory reason for the distinctions drawn between the three classes of employees that UPS does accommodate, and UPS’s refusal to accommodate pregnant employees with lifting restrictions.

Impact on Delaware Employers

The Young decision opens up a lot of questions, including what legitimate business considerations may justify a decision to accommodate some employees, while not accommodating pregnant employees. But Delaware employers have some additional guidance, in the form of the new pregnancy provisions of the Delaware Discrimination in Employment Act (DDEA)

As we have reported previously, the Delaware General Assembly amended the DDEA in 2014, to expressly prohibit discrimination against pregnant employees and to require accommodations of pregnant employees, even when they are not disabled within the meaning of Delaware anti-discrimination law. While this statute places a heavier burden on Delaware employers, it also provides some guidance in compliance with the Young decision. In Delaware, there is no question that pregnant employees are entitled to take advantage of the same reasonable accommodation processes that are available to disabled employees-there is no need to determine whether you have a legitimate non-discriminatory reason to make a distinction.

Bottom Line

While Delaware may have raised the bar on employer treatment of pregnant employees, the amendments to the DDEA do provide guidance to Delaware employers. Unlike many other states, we do not have to wait for courts to parse what business concerns are “legitimate,” and which are insufficient to justify different treatment of pregnant employees. We must accommodate them all, under the same standards as applicable to the ADA.

I recently saw an article in the ABA Journal about a mom who allegedly was fired for wanting to breastfeed at work. The federal judge in the Southern District of Texas concluded in that case that lactation is not “pregnancy, childbirth, or related medical condition” under Title VII, and therefore discrimination on that basis does not constitute sex discrimination. While I strongly disagree with that conclusion, she is not the first judge to draw this conclusion.

The Ohio state judge in the Isotoner decision reasoned that lactation was not “pregnancy related,” because a woman could choose to stop it if she wanted to. It is interesting that courts have interpreted “pregnancy-related conditions” broadly in other areas – for instance concluding that not being pregnant is pregnancy-related, yet seem to struggle with the notion that breastfeeding is pregnancy-related.

I suggested in my earlier post that, in light of the existing case law, Congress needs to fix the problem by enacting legislation to make clear that breastfeeding is protected activity. Congress acted. Effective March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk. See our earlier post on the FLSA Amendment.

My initial thought upon reading the recent Texas decision was that if the relevant events had occurred after this amendment, the plaintiff may have gotten further with her claim that she was discriminated against for wanting to nurse her newborn. (There are lots of reasons her claim could fail, including if she was terminated for another reason, she was an exempt employee and therefore not covered by FLSA, or the employer had fewer than 50 employees and could therefore assert providing nursing facilities was an “undue hardship” under the amendment). But let’s assume for purposes of discussion, that the plaintiff was indeed terminated for asking about where she could pump breast milk, covered under the FLSA amendment, and the company decided they did not want to deal with the hassle. Surely, that would be illegal under the FLSA amendment, right?

The answer is not as obvious as one might think. The amendment related to nursing contains no language regarding retaliation. The retaliation provisions within the broader FLSA statute extend protection only to employees who have “filed a complaint or instituted or caused to be instituted any proceeding under or related to the [FLSA], or has testified or about to testify in any such proceeding.” 29 U.S.C. §215(a)(3). This would not protect the plaintiff in the Texas case, who evidently did not lodge any complaints regarding her nursing until she filed her complaint in federal court over her termination.

At least 24 states have their own laws protecting breastfeeding at work. Many include more broad retaliation protection language than FLSA provides. For instance, Maine’s law, which require that employers provide similar break times and locations as the federal law, also states that “a]n employer shall not retaliate or discriminate against an employee who exercises the right provided under this section.”

If a woman is unfortunate enough to reside in any of the 26 states without such laws, the nursing provisions of the new PPACA law appear to leave a nursing mom exposed, so to speak. Her employer could be required to provide nursing facilities and appropriate breaks under federal law. Instead of complying with that law, an employer could decide merely to terminate the employee because it does not want to deal with the hassle. There appears to be little to protect such a woman under federal law, unless she has registered a “complaint” under FLSA.

The right to breastfeed at work does not fit neatly into existing statutory language. The law needs to be amended in order to protect nursing mothers from retaliation for choosing to exercise their rights under FLSA to take nursing breaks in a designated space. Until that is done, unless the mother complains about the lack of facilities or the failure to give her break time as required under the statute, it appears there is little to protect her if she is terminated for exercising or planning to exercise her rights to pump breastmilk at work.

Reversing a long-held position, the IRS announced yesterday that breast pumps and other lactation supplies are now deductible.  Employees can now use pre-tax funds from their flexible spending accounts and health savings accounts for these supplies. The ruling is effective immediately and can be used on 2010 returns.

In conjunction with the FLSA amendment, which was went into effect in March of 2010, this ruling signals that policymakers are finally coming to appreciate the health benefits of breastmilk for newborns, that medical professionals have long touted.

Breast pumps and related supplies can run as high as $1,000 in the baby’s first year. The fact that employers are now required to accommodate lactation breaks of reasonable length, combined with the change in IRS policy is likely to have a measurable effect on the number of mothers returning to work who opt for the benefits of breastmilk.

See also:

Court Ruling on Breastfeeding at Work Brings a Downpour of Criticism

New Guidance on Law Requiring Breaks for Nursing Mothers

On August 27, the Ohio Supreme Court Court issued its opinion in Allen v. Totes/Isotoner Corp.  In its two-page opinion, the majority said that the employee was fired for not following company policy on breaks, period. End of story, plain and simple. Apparently not so, judging on the uproar this decision has created in the blogosphere:

It appears many out there misapprehend the nature of the protections provided under the Pregnancy Discrimination Act. On the federal level, the PDA was an amendment to Title VII, enacted in 1978, which clarified that discrimination based on “sex,” included discrimination based on “pregnancy or related conditions.” Most states, including Ohio, have amended their state law similarly, and follow federal law on the interpretation of their statute.

Continue reading

Pregnancy discrimination took center stage at the country’s highest court earlier this week, when the U.S. Supreme Court issued its decision in AT&T v. Hulteen.   (See my previous post about the case when the Supreme Court first granted certiorari last summer).   On May 19, 2009, the Court reversed the Ninth Circuit’s decision and held that AT&T did not violate the Pregnancy Discrimination Act of 1978 (PDA) by calculating the accrual of pension benefits in a way that gives less retirement credit to employees who took pregnancy leave before enactment of the PDA than to employees who took other kinds of medical leave.6a00e5502a8001883300e5534ed9f98833-320pi

The Court rejected the plaintiffs’ argument based on the Lily Ledbetter amendments to Title VII. The Court held that the Lily Ledbetter Fair Pay Act, which made it “an unlawful employment practice … when an individual is affected by application of a discriminatory compensation decision or other practice, including each time … benefits [are] paid, resulting … from such a decision”…. [did] not help Hulteen. AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been ‘affected by application of a discriminatory compensation decision or other practice.’”

The bottom line is that there are few employers likely to be implementing retirement plans whose accrual policies pre-dated enactment of the PDA in 1978. Obviously, over time, the number of employers facing this situation will only get smaller.

Should an employer be in this situation, however, they can rest easy knowing that as long as any continuing effect of a pre-PDA retirement compensation system is pursuant to a bona fide seniority system, and not the result of an intentional employer to apply different standards of compensation, they will not be in violation of the PDA.

For those who wish to learn more, the Workplace Prof Blog and SCOTUS Blog have excellent posts covering the decision.  For more general information on the ins and outs of the Pregnancy Discrimination Act, see these previous posts or take the Pregnancy Discrimination Quiz at H.R. Hero:

New Study on Trends in Pregnancy-Discrimination Lawsuits

Pregnancy Discrimination Act Includes Infertility Treatments

Case Alert: Pregnancy Discrimination Act Extends to Abortion

The Wall Street Journal recently posted an entry on its blog “The Juggle,” entitled Laid Off . . . And Pregnant,” describing the position of tens of thousands of pregnant women laid off in the current economy. As noted by the article, pregnant women are just as subject to any one else to being laid off for economic reasons, as long as they are not specifically targeted based on their pregnancy or assumptions about their future commitment to the job as new mothers. stick people family images

A woman laid off while pregnant, however, is in a uniquely difficult position. Legal prohibitions against pregnancy discrimination notwithstanding, women with a visible belly are not the most competitive job candidates. Most unemployed women “showing” their pregnancy assume (with good reason) that they will never get hired, and therefore remove themselves from the job market. Others hope to land a job offer before their appearance forces them to disclose their condition.

Although it is illegal for an employer to refuse to hire a candidate simply because of her pregnancy, the employer is likely to assume that the employee will be unable to work for at least some period in the near future. In addition, there remain societal assumptions about a new mother’s lack of focus on work (that the EEOC’s Guidance on Family Responsibility Discrimination (pdf) was designed to combat). Even if, subconsciously, one would anticipate most employers to reach the decision that another (non-pregnant) candidate was better suited for the position. It goes without saying that an expectant father who is laid off does not face the same hurdles.

We’ve come a long way, baby, but not that far.

There’s no easy answer to this issue. I’m sure there are plenty of expectant mothers crossing fingers and toes (if they can reach them) and hoping that they remain employed through the duration of their pregnancy.

Work-life issues have taken center stage in the first month of the country’s new administration. President Obama’s campaign platform included a specific “Plan to Support Working Families and Women,” and just a few weeks ago Michelle Obama appointed Jocelyn Frye, general counsel of the National Partnership for Woman and Families, as her Policy Director. clip_image002

Many advocacy groups have high hopes that the protections of FMLA and/or Pregnancy Discrimination Act are eventually broadened. In the meantime, however, legal protection in the work-life balance area is limited. Unlike most other industrialized nations, pregnant workers in the United States are afforded no special protections, employers are required only to treat pregnant workers no worse than other temporarily disabled employees.

Pregnancy is not (absent unusual complicating conditions) a disability that must be “accommodated.” Federal law provides little in the way of benefits to pregnant employees to make it easier for them to have a baby and then go through a bonding period.

Continue reading

Employment discrimination against pregnant women and moms is on the rise.  Or so says the author of an article in this month’s Delaware Today magazineYoung Conaway attorney Adria Martinelli was quoted in the article, commenting on the relationship between the state of the economy and discrimination against women with children. 

The number of single mothers has increased dramatically over the last three decades, rising from 3m in 1970 to 10m in 2003.  And, according to a Cornell study cited in the article, a woman with children is 44% less likely to be hired than a non-mother with the same resume, experience, and qualifications.  Mothers who were hired were offered, on average, $11,000 less than non-mothers.

Although these statistics are sobering, Delaware mothers have some statistics worth celebrating.  Two Delaware employers were included in the 2007 100 Best Companies for Working Mothers award, AstraZeneca and the DuPont Company.  AstraZeneca was also recognized by Fortune magazine as one of the 100 Best Companies to Work For in 2008.  The pharma corporation’s adoption and fertility benefits earned it recognition from the Dave Thomas Foundation for Adoption and Conceive magazine.

Although the question of whether maternal profiling really occurs in the workplace and, if so, to what extent, is subject to debate, this article clearly believes that it does occur–a lot.  Maybe so.  But the law is designed to prevent this and, if pregnancy discrimination or caregiver discrimination does occur, the law provides victims with critical remedies and a day in court.

The FMLA gives eligible employees up to 12 weeks of unpaid leave to care for a newborn or just-placed adopted child.  Both parents are eligible for the leave–the FMLA does not discriminate based on gender.  Additionally, Title VII was amended to add the Pregnancy Discrimination Act (“PDA”), in 1978.  In 2008, the Third Circuit ruled that the PDA also prohibits a woman from being fired for having an abortion.  The law also offers women protection for undergoing fertility treatment.  Lastly, the EEOC has interpreted Title VII as prohibiting discrimination based on caregiver status.  This branch of discrimination law protects both men and women from workplace discrimination based on caregiver or family responsibilities they may have at home, including caring for young children, as well as for elderly parents. 

It’s likely that, for years to come, the debate over whether maternal profiling occurs in the workplace will likely continue.  What is clear, though, is that maternal profiling is a type of employment discrimination prohibited by law.

Pregnancy discrimination complaints have been on the rise for a very long time.  In 2007, working women in the United States filed 65 percent more complaints of pregnancy discrimination with the Equal Employment Opportunity Commission (EEOC) than they filed in 1992.  A new study analyzing pregnancy discrimination claims (pdf) was released today by the National Partnership for Women & Families at a symposium to commemorate the 30th anniversary of the Pregnancy Discrimination Act (PDA), enacted on October 31, 1978. image

To conduct the study, the National Partnership for Women & Families analyzed the most recent pregnancy discrimination charge data, as well as detailed pregnancy discrimination charge data from a ten-year period – FY1996 to FY2005. They also reviewed recent demographic data on women’s labor force participation and childbearing trends, and data about stereotypes and attitudes confronting pregnant women on the job.

The study reaches some interesting conclusions:

1. The growth in pregnancy discrimination claims during the time period was fueled largely by charges filed by women of color. Claims by by women of color jumped 76 percent, while claims overall increased by 25 percent.

2. Female-dominated industries may be no less likely to have discriminatory practices than industries with women in non-traditional jobs. More than half the claims filed with the EEOC during that period (53 percent) were filed in service, retail trade and the financial services, insurance and real estate industries – where some seven in ten women work.

3. Pregnancy discrimination charge filings increased in almost three-quarters of the states, with 38 states recording an increase in charges.

4. There is no single cause for the rise in pregnancy discrimination suits. The study posits that longstanding stereotypes and attitudes about gender, coupled with increasing numbers of women in the workplace, are among the key reasons for the rising numbers.

Pregnancy discrimination is the wrong being alleged by the U.S. Equal Employment Opportunity Commission (“EEOC”), against not-for-profit company, Imagine Schools, Inc., which is one of the largest operators of charter and private schools in the country.  The company, based in Virginia, is alleged to failed to hire two women for administrative positions at the Renaissance Academy in Kansas City, Missouri, because they wee pregnant.  The Renaissance Academy was the rebirth of Southwest Charter School in Kansas City, which had lost its charter.  Both women worked at Southwest prior to its closing. 

The EEOC recently filed suit against a private school in Maryland, alleging that it failed to renew a teacher’s contract after learning that he was HIV positive. (See EEOC Files Suit Alleging School Fired Teacher for Being HIV Positive).

Contact Information