In Part 1 of this series on Pregnancy Discrimination, we highlighted the various federal laws that employers must comply with as it pertains to pregnant and nursing employees. In Part 2, we will examine how employers can avoid liability under the various laws. The EEOC has been cracking down in recent weeks on pregnancy discrimination claims. For example, EEOC General Counsel Karla Gilbride stated the following:
“No pregnant worker should have to choose between their health and earning a living to support their family,” said Gilbride. “The PWFA requires that when an employee needs a modification at work because of their pregnancy or a related condition and the employer becomes aware of that need, the two must work together to try to find a solution. When employers apply inflexible policies that drive pregnant workers out of the workplace rather than engaging in this interactive process, the EEOC will step in to defend workers’ rights under this new law.” The three current cases litigated by the EEOC that employers should keep a close eye on related to pregnancy discrimination include EEOC v. Wabash National Corporation, EEOC v. Polaris Industries, Inc., and EEOC v. Urologic Specialists of Oklahoma, Inc. In the meantime, employers should focus on three primary areas in dealing with pregnancy-related legal issues: liability in the hiring process, liability during employment, and properly managing absences.
Avoiding Liability in the Hiring Process
The first avenue for employer liability begins at the pre-hire stage. To state the obvious, employers should refrain from alluding to any pregnancy-related language in the initial job posting, including preferences for non-pregnant workers or limitations for pregnant workers. Next, while employers are not prohibited from asking questions about pregnancy status (or desire to become pregnant), employers would be wise to avoid asking these questions, as they may be viewed as intolerant toward a pregnant applicant. Federal law does prohibit employers from making hiring decisions based on the applicant’s sex or pregnancy, so asking these questions during the hiring process opens an employer up to unnecessary adverse inferences if the applicant does not end up getting hired.
Employers are strongly encouraged to draft thorough and accurate job descriptions. The job posting should outline the specific duties and requirements of the candidate, including education and experience levels. This can help proactively protect an employer from liability if an employee or prospective employee cites their pregnancy status as a reason for the employer’s refusal to hire, impose discipline, promote, or retain the employee. For example, if the applicant did not meet all the requirements of the job posting, there can be an objective and specifically identified reason to defend against a discrimination claim. Documentation is key, as accurate records help employers defend against pregnancy discrimination claims by demonstrating that employment decisions were based on legitimate, non-discriminatory business reasons. Overall, employers should have an objective criteria for making employment decisions that can be articulated in the event of accusations of discrimination. Having standardized interview questions and interview procedures also can be used to defend against claims of disparate treatment in the interview process.
Avoiding Liability During Employment
As illustrated in Part 1 of this series, there are numerous federal laws that employers must adhere to as it relates to pregnancy, including Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended, the Pregnancy Discrimination Act (“PDA”), Pregnancy Workers’ Fairness Act (PWFA), the Family Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”), and Fair Labor Standards Act (“FLSA”)/PUMP Act. Employers should focus on the following during the employment of pregnancy and nursing employees:
1. Providing Break time for Nursing Mothers
First, employers must accommodate lactation. The FLSA, as amended by the Providing Urgent Maternal Protections for Nursing Mothers Act, requires employers to provide reasonable time and a private place for nursing employees to express breast milk, with limited exceptions. Most employees have the right to take reasonable break time to express breast milk for their nursing child. For one year after the child’s birth, covered employees may take reasonable break time each time such employee has need to express the milk. An employer may not deny a covered employee a needed break to pump. The frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child. Factors such as the location of the space and the steps reasonably necessary to express breast milk, such as pump setup, can also affect the duration of time an employee will need to express milk. Employees who telework are eligible to take pump breaks under the FLSA on the same basis as other employees.
2. Reasonable Accommodations to Pregnant and Nursing Mothers
The PWFA will require employers to provide a reasonable accommodation to a qualified employee or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions unless providing the accommodation would impose an undue hardship on the employer’s business. A known limitation is a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer” even if it does not constitute a disability under the ADA. The PWFA requires employers to conduct an interactive process with employees or applicants who are seeking accommodations. While an employer does not have to grant the employee’s preferred request and may offer alternatives, the employer should be able to establish that it engaged in an interactive process with the employee.
The PWFA prohibits employers from placing an employee impacted by pregnancy, childbirth, or related medical conditions on a leave of absence (paid or unpaid) when a different reasonable accommodation option is available. Accommodations could include: allowing workers to sit or drink water; providing closer parking spaces; offering flexible working hours; providing appropriately sized uniforms and safety apparel; allowing workers additional break time to use the bathroom, eat, and rest; excusing workers from strenuous activities or activities that involve exposure to compounds not safe for pregnancy; and giving leave or time off to recover from childbirth. The PWFA is much broader than the ADA, since it includes terms like “temporary” and “in the near future,” a worker may still be qualified for an accommodation even if they cannot perform an essential function of their job for that limited timeframe.
As an EEOC Regional Director in Alabama stated: “It is also illegal under the PWFA to take adverse action against an employee requesting a reasonable accommodation related to pregnancy, childbirth or related medical conditions of that employee. The EEOC will diligently pursue remedies for individuals whose employers deny them the protections that the PWFA offers.”
3. Awareness that Adverse Employment Action Towards Pregnant Women Can Prompt Litigation
It is important for employers to recognize that any adverse employment action, including demotion or failure to promote, may lead to litigation. Employers should be aware that current employees can complain of discrimination even though they have not been terminated. Employers can reduce the risk of litigation by documenting the legitimate business reasons for all adverse employment decisions, including decisions about compensation, promotion, and demotion. Further, refusing to hire, promote, demote, terminate (including constructive discharge), due to pregnancy fetal policies, policies that treat pregnant and nonpregnant workers different in general are cause for liability.
Employers should also exercise caution when responding to questions about why an employee was demoted, not promoted, or subject to other adverse action. As with rejected applicants, employers must not dismiss or joke about follow-up questions from employees subject to adverse employment decisions. An employer should strive to create a harmonious workplace.
Managing Absences
Naturally, pregnant and nursing mothers are going to request time off at some point. Employers must consider obligations that continue beyond an employee’s pregnancy and carefully manage absences. Title VII and the PWFA also protect formerly pregnant employees, and employers may not: (1) establish a predetermined period of time following childbirth during which an employee is prohibited from returning to work; or (2) require a pregnant employee to remain on leave until after childbirth if the employee has been absent from work resulting from a pregnancy-related condition and recovers. Further, employers must hold open a job during an employee’s absence due to a pregnancy-related disability for the same amount of time that it would hold a job open for employees on sick or temporary disability leave for other purposes.
Conclusion
The plethora of laws that are in place to protect pregnant and nursing mothers should underscore the scrutiny that applies to employers in this sphere. Liability can come from many sources and even the best-intentioned employers may find themselves running afoul the law. Employers should be flexible in offering accommodations and engage in an interactive process with employees, even if it causes some short-term inconveniences to business operations. Ultimately, employers should tread lightly and err on the side of caution and over inclusiveness when it comes to pregnant and nursing employees.
We are happy to assist you if you have any questions about properly handling issues surrounding pregnant and nursing employees, accommodations, properly complying with federal pregnancy and leave laws, or any other employment law or business matter. Please visit us at cadoganlaw.com and contact us to schedule a free consultation.
Biography: Abhishek Ramaswami is an Associate Attorney at Cadogan Law, practicing in all aspects of Labor and Employment Law from the agency level through trial, as well as Business Litigation. He is licensed to practice law in Florida, New York, and New Jersey, with pending licensure in Illinois. In his spare time, he enjoys sports, cooking, the outdoors, and traveling with his wife.