Category Archives: Pregnancy Discrimination

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

NEW LAW – New York City To Require Lactation Rooms

Attention New York City employers, under a new law (Int. 879-A and Int. 905-A), which takes effect on March 18, 2019, employers with 4 or more employees will be required to provide “lactation rooms” for breastfeeding employees to express milk in the workplace.  In addition, employers must develop a written policy relating to lactation accommodation that must be provided to all employees and all new employees upon hire.

The City Commission on Human Rights will be developing a model policy that employers can use.

NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations

The Washington State Attorney General recently published a Guide (“Pregnant Workers’ Accommodation Rights”) which outlines pregnant employees’ civil rights under the Washington Healthy Starts Act.

As a refresher, the Washington Healthy Starts Act requires Washington employers with at least 15 employees in Washington state provide accommodations to pregnant employee, regardless of a pregnancy disability.  Among the accommodations to be provided include, but are not limited to:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • (Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee’s workstation;
  • Providing seating or allowing the employee to sit more frequently if her job requires her to stand;
  • Providing for a temporary transfer to a less strenuous or less hazardous position;
  • Providing assistance with manual labor and limits on lifting;
  • Scheduling flexibility for prenatal visits; and
  • Any further pregnancy accommodation an employee may request, and to which an employer must give reasonable consideration in consultation with information provided on pregnancy accommodation by the department of labor and industries or the attending health care provider of the employee.

Continue reading NEW GUIDANCE: Washington State Attorney General Publishes New Guide on Pregnancy Accommodations

NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.

Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”  A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

NEW LAW: Illinois Amends the Nursing Mothers in the Workplace Act

On August 21, 2018, Illinois Governor Bruce Rauner signed House Bill 1595 into law.  This new law amends the Illinois Nursing Mothers in the Workplace Act and expands the legal protections afforded to nursing mothers in Illinois.  The amendments to this law took immediate effect.

Under the existing law, Illinois employers with 6 or more employees are required to grant “reasonable unpaid break time” each day to an employee needing to express breast milk for her infant child.

The amended law makes the following changes to the existing law:

  • Employers are required to provide “reasonable break time” (instead of “unpaid break time”) each time an employee needs to express milk for one year following the child’s birth.
  • The “reasonable break time” may run concurrently with existing break time provided to employees (the original law provided that break time “must, if possible” run concurrently with other breaks).
  • Employers are prohibited from reducing an employee’s compensation for time spent for the purpose of expressing milk.
  • Employers must prove that an undue hardship exists in order to avoid providing the required breaks. “Undue hardship” is defined as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer.

It is recommended that all Illinois employers review their lactation accommodation practices and ensure that they comply with the new law.

NEW GUIDANCE: South Carolina Publishes FAQs For New State Pregnancy Accommodations Act

Earlier this year, South Carolina passed an amendment to the state’s Human Affairs Law, which requires employers with at least 15 employees to provide reasonable accommodations to employees with a “pregnancy-related condition” (i.e.  medical needs arising from pregnancy, childbirth, or other related medical conditions), unless the employer can demonstrate the accommodation would impose an undue hardship. (See our article “South Carolina Adds to Existing Pregnancy Accommodation Requirements” for more information about this amendment).

To help employers better understand their obligations under this new law, the South Carolina Human Affairs Commission has published Frequently Asked Questions addressing the new amendment.  It is recommended that all South Carolina employers review these FAQs.

Continue reading NEW GUIDANCE: South Carolina Publishes FAQs For New State Pregnancy Accommodations Act

NEW LAW — Gender-Neutral Restrooms Coming to Vermont

The movement towards gender-free restrooms has continued to gain momentum with Vermont joining as the latest state to authorize single-user restrooms for use by all genders in public facilities.

The new law (H.333), signed by Governor Phil Scott, will require all single-user bathrooms in public buildings or places of public accommodation to be marked as gender-neutral.

For purposes of the new law, a “single-user bathroom” is defined as “a single-occupancy restroom with at least one water closet and with an outer door that can be locked by the occupant.” 

The law, which goes into effect on July 1, 2018, has been embraced by the state’s LGBT community, who has been vocal about protecting transgender individuals by embracing equality and inclusivity. Gov. Scott said, “This is especially important for kids in school who face anxiety and bullying over something as simple as using the restroom. Treating others in this way is not who we are as Vermonters, and I hope the signing of this bill will send a powerful message that that’s not the way we act.” Continue reading NEW LAW — Gender-Neutral Restrooms Coming to Vermont

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW LAW — New Jersey Law Against Discrimination Prohibits Discrimination Against Breastfeeding Employees

On January 8, 2018, New Jersey Governor Chris Christie signed A2294 into law.  This bill amends the New Jersey Law Against Discrimination (NJLAD) to include breastfeeding to the list of protected classes under the NJLAD.

With this amendment, which went into effect on January 8, 2018, employers are expressly prohibited from engaging in the following conduct:

  • Refusing to hire breastfeeding applicants;
  • Firing an employee because she is breastfeeding or otherwise discriminating against a breastfeeding employee in compensation and other terms, conditions, or privileges of employment; and
  • Treating female employees you know or should know are “affected by breastfeeding” less favorably (e.g. with respect to workplace accommodation and leave policies) than employees not so affected but similar in their ability or inability to work.

In addition to the foregoing, employers are required to provide breastfeeding employees with reasonable accommodation, including a reasonable break time each day and a private location near the work area (but not a toilet stall) for the employee to express breast milk for her child – unless the employer can demonstrate that providing the accommodation would impose an “undue hardship” on the business.

Under the NJLAD, whether an accommodation is considered an undue hardship is determined by the following factors:

  • The overall size of your business with respect to the number of employees, number and type of facilities, and size of the budget;
  • The type of your operations, including the composition and structure of your workforce;
  • The nature and cost of the accommodation, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
  • The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

This is a high standard to meet.

Take home for employers

Since this law went into immediate effect, New Jersey employers should verify that their current employment policies and practices relating to breastfeeding employees are compliant with the new law.