The Equal Employment Opportunity Commission (EEOC) is hoping in the next three years to push reforms that would require companies to accommodate pregnant women in much the same way they must provide for disabled workers.
Our Boston employment lawyers know that as it stands, many pregnant employees are forced to take unpaid leave after they have been denied accommodations that are given to others with recognized disabilities. That last part is important, though, because although employers may not discriminate against pregnant workers, per a 1978 amendment to Title VII, they usually don’t have to make any special allowances for pregnant women – unless they do the same for other “similarly situated workers” who have temporary disabilities.
But pregnancy, or at least “ordinary pregnancy,” doesn’t qualify as a disability under the Americans with Disabilities Act.
It seems common sense that employers would need to provide certain accommodations to pregnant workers, particularly later in their term when the physical strains of their position are most likely to result in medical complications. This would reduce the number of potential on-the-job injuries, not to mention reduce the employer’s liability.
But as it stands, many employers will often extend light duty assignments to workers who have been temporarily disabled by on-the-job injuries, but won’t give pregnant workers the same consideration – even when the workers’ doctor restricts them from things like heavy lifting. That’s because pregnant workers aren’t considered disabled, weren’t injured on the job and therefore aren’t considered “similarly situated.” The courts have tended to narrowly define the “similarly situated” provision, meaning it has been tough for plaintiffs to successfully argue for pregnancy accommodations. (One recent case was Reeves v. Swift Transportation in which the 6th Circuit decided in 2006 that pregnancy workers not injured on the job weren’t considered eligible for light duty.)
We could soon see a shift, however. The EEOC is making this issue a priority in its 2012-2016 Strategic Enforcement Plan, naming the accommodation of pregnant workers among the top emerging issues. The draft of this plan indicates employers would be wise to tread carefully on this issue, lest they face legal action.
In one such case, written testimony the EEOC submitted for a discrimination hearing slated to be heard this month asserts that the recently-expanded provisions of the ADAAA require disability accommodations for certain types of pregnancy-related conditions, such as anemia, sciatica, carpal tunnel syndrome and gestational diabetes. So even though pregnancy itself isn’t specifically protected, certain health issues stemming from it very well could be – meaning companies would have a responsibility to make accommodations as necessary. This also could lead to employers changing the policy with regard to light duty, meaning other pregnant workers might be covered as well.
But it’s not just the EEOC taking on this issue. Last fall, the Pregnant Workers Fairness Act was introduced in both the House (H.R. 5647) and Senate (S. 3565). The measure would have made it illegal for employers to refuse to make reasonable accommodations to workers relative to pregnancy, childbirth or any related medical condition. The bill died in committee, but we expect similar proposals to be made in the future.
The bottom line is that company leaders would do well to consider making reasonable accommodations to pregnant workers when possible to avoid possible litigation. And pregnant workers who believe they have been discriminated against should contact a Boston employment lawyer as soon as possible to discuss your options.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
ADAAA could soon protect pregnant workers, Dec. 2012 Issue, By Mary Swanton, Inside Counsel Magazine
More Blog Entries:
Feldman v. Olin: Employers Must Make Accommodations for Employees with Disabilities, Dec. 6, 2013, Boston Employment Lawyer Blog