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

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.

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.

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.

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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.

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.

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.

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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.

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:

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).

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