Category Archives: Pregnancy Discrimination Act

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 CASE: Federal Court Finds Pregnancy Discrimination Act Protects Breastfeeding

In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.

The Case

In this case, the plaintiff was a female police officer who had returned from maternity leave.  Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding.  The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused.  As a result, the officer resigned and filed a lawsuit.

The Holding

The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA.  In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.)  Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries.  As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.

Take Home for Employers

The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume.  Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.

NOTE:  There are also many state laws that provide protections for pregnant employees.  Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.

What Not to Do When Your Job Applicant is Expecting

It is very important for prospective employers to tread carefully when they learn an applicant is pregnant. Brown & Brown of Florida, learned an expensive lesson on pregnancy discrimination and recently settled a legal claim (EEOC v. Brown & Brown of Florida, Inc.) related to this issue.

The Case

The plaintiff, Nicole Purcell applied for an entry-level position at brokerage firm of Brown & Brown in Daytona, Florida. She was shortlisted for the position after multiple rounds of interviews. The company gave her an offer of employment. Once the plaintiff received the offer, she contacted the company’s Employee Services Coordinator to accept and asked the coordinator about maternity benefits, while announcing that she is pregnant.

About 30 minutes after the call, the coordinator sent the plaintiff an email rescinding the job offer citing that the company needed somebody in the position “long term.”

The plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC in turn filed a federal lawsuit on her behalf against Brown & Brown. This lawsuit was later settled for $100,000 – quite a hefty price tag for what amounts to 30 minutes of employment.

Takeaways for Employers

Had the company engaged in an interactive conversation with the applicant regarding any limitations she might have developed related to her pregnancy, and whether any potential limitations existed affecting her ability to do her job that could be accommodated, it is possible that much that followed could have been avoided.

Here are some DOs-and- DON’Ts that might be helpful for employers faced with a similar situation.

  1. Don’t assume that a pregnant applicant (or employee) is unable to do a job or will be absent for an extended period of time.
  2. Do engage in the interactive process with the pregnant employee (or applicant) and discuss any limitations she might have performing essential job functions because of her pregnancy and what accommodations can be made.
  3. Do document all discussions with pregnant employees (or applicants) relating to the interactive process and possible accommodations.
  4. Do assure the pregnant employee (or applicant) that the company complies with all federal and state laws regarding pregnancy leaves.
  5. Don’t renege an offer of employment (or terminate an existing employee) because the individual is pregnant.

Avoid These Mistakes With Your Pregnant Employees

Pregnancy discrimination is one of the most common claims pursued by the EEOC. In fact, the EEOC has stated in its Strategic Enforcement Plan that one if its top priorities is to “to address emerging and developing issues … including issues involving the ADA and pregnancy-related limitations.”

In light of this focus on pregnancy-related claims, employers should take steps to avoid the mistakes made by these two employers.

Moonshine Whiskey Bar

In May of 2016, the EEOC obtained a $66,000 judgement against the Moonshine Whiskey Bar in a pregnancy discrimination lawsuit.

As evidence in support of its case, the EEOC produced a recording wherein one of the bar’s owners admitted that he was terminating this employee because of her pregnancy. Specifically, the owner stated,

“There’s going to be a whole number of people that I would be offending by allowing a pregnant person to be behind the bar. They might look at it as the owner’s a f—ing idiot they’re letting a girl that’s pregnant that could get injured behind the bar bartending right now. How irresponsible are those guys?”

This case serves as a reminder to all employers that they need to curb their paternalistic tendencies when working with their pregnant workforce. Simply put, women must be allowed to make their own decisions about working while pregnant – the employer cannot make that decision for them.

Landis Homes Retirement Community

Also in May of 2016, the EEOC settled a pregnancy discrimination claim it had raised against Landis Homes Retirement Community for $132,500.

In this case, the employer refused to accommodate a pregnant employee when she requested an accommodation to lift no more than 25 pounds. This request by the pregnant employee was denied even though the employer had granted similar requests for accommodation of non-pregnant employees.

Instead of accommodating the pregnant employee, the employer placed the employee on an indefinite leave because of her pregnancy and disability and told her to re-apply after she gave birth and no longer had any medical restrictions. However, when Potts sought rehire after having her baby, the company refused to rehire her and engaged in an unlawful medical inquiry.

In commenting on this case, the EEOC district director warned, “Employers must be aware of the intersection between the ADA and Title VII’s pregnancy discrimination prohibitions. This settlement should prompt all employers to review their reasonable accommodation policies and practices now to make sure they are compliant with both laws.”

Take home message for employers

Employers must remember that the EEOC is targeting disability and pregnancy discrimination cases. Before taking any type of employment action against a disabled or pregnant employee, employers must act with caution and be sure they are not succumbing to myths and fears about disabilities or pregnancy and, more importantly, not attempting to “protect” a pregnant employee or her unborn child without her input.

EEOC Confirms: Don’t Ask, Don’t Tell Is Alive And Well With Respect To Employee Pregnancy

CFS Health Management, a medical practice specializing in skin care, has learned a costly lesson regarding managing pregnant employees as it settles a pregnancy discrimination lawsuit filed by the Equal Employment Opportunities Commission (EEOC) for $37,000.

The Facts:

The Company terminated one of its newly hired skin care specialists three days after the employee informed the Company she was pregnant. When the employee asked why she was being discharged, the Company told her she had deceived the company by not telling them she was pregnant when she was hired. The applicant later filed a claim with the EEOC alleging she was discriminated against because of her pregnancy.

EEOC’s Position

The EEOC agreed with the applicant and filed a lawsuit against the Company alleging that the Company had violated the Pregnancy Discrimination Act when it terminated the employee because of her pregnancy. In commenting on this case, the EEOC’s attorney for the Atlanta District, Robert K. Dawkins, made the statement; “Firing a woman simply because she is pregnant is simply against the law. EEOC will stand up for the rights of women to enjoy their rights to livelihood and motherhood – and not have to choose between them.”

Take Away For Employers:

Employers should remember that an applicant or employee does not have to inform the employer she is pregnant. If, after hiring a new employee, the employee reveals she is pregnant, the employer cannot “punish” the employee for withholding that information during the interview.

Updated EEOC Enforcement Guidance

Last week the Equal Employment Opportunity Commission released updated Enforcement Guidance on pregnancy discrimination and related issues.  The new guidance takes into consideration the U.S. Supreme Court’s decision in Young v. UPS.

The new guidelines supersede those released by the EEOC in July 2014.

Highlights of the guidelines include:

  • A plaintiff can establish an initial showing of discrimination by showing that she is pregnant, that she requested a reasonable accommodation, that her request was denied and that her employer granted accommodations to others in “similar” situations (i.e., temporary disabilities)
  • A practice or policy that provides reasonable accommodations, such as light-duty, to non-pregnant employees but not pregnant employees unlawfully burdens pregnant employees

Employers should take this recent update as further evidence of the EEOC’s agenda to eradicate pregnancy discrimination in the workplace.

U.S. Supreme Court Rules on Pregnancy Discrimination Act

Today, March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service.  The Court’s ruling allows plaintiff, Peggy Young, to pursue her case against UPS in the lower courts.  Young alleged that UPS violated the Pregnancy Discrimination Act (the “Act”) by denying Young the right to work “light duty” during her pregnancy, an accommodation that was given to other temporarily disabled employees. Facts As part of her job at UPS, Young was required to lift boxes as heavy as 70 pounds.  When she got pregnant, her midwife recommended that she not lift more than 20 pounds. Young asked her employer to put her on light duty.  UPS refused to accommodate Young which left her with no alternative but to take an unpaid leave of absence, without medical benefits. Continue reading U.S. Supreme Court Rules on Pregnancy Discrimination Act

Jury Awards Employee $185M In Pregnancy Discrimination Case

The Verdict

On Monday, November 17, 2014, an eight year long legal battle ended when a federal jury awarded plaintiff $185M in punitive damages in her pregnancy discrimination case against AutoZone.

The Facts

Plaintiff was employed by AutoZone initially as a retail sales person, then a Parts Sales Manager, and ultimately a Store Manager. After she became pregnant, she was demoted and later terminated. She alleged that AutoZone had a policy against promoting women, that she was discriminated against based on gender and pregnancy, and that she was demoted and later terminated for having complained about it. In addition, Plaintiff was allegedly not compensated as required by California and federal labor laws.

Don’t Make the Same Mistake – Follow the Law

Federal law expressly prohibits discrimination based on pregnancy.  Many states also have laws prohibiting discrimination based on pregnancy, related medical conditions and gender.

Federal Law

Employers with more than 15 employees are covered by the federal Pregnancy Discrimination Act (PDA). Prohibited discriminatory treatment under the PDA would include treating a woman differently due to pregnancy, childbirth or related medical condition(s) in any aspect of employment. This would include: hiring, termination, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is also unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Specifically, the PDA act states: “Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

While this law provides accommodations and leave for pregnant employees, it also allows pregnant women to work as long as they feel they are able to perform the essential functions of their jobs. Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited.

Employers may be found to have violated the PDA under the following circumstances:
• Compelling a pregnant employee to assume a light duty assignment if the employee does not request accommodations.
• Involuntarily reassigning a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that a pregnant employee cannot handle stress and/or fast-paced work required in her current job and could increase risks associated with her pregnancy.
• Forcing an employee to go on leave before she and her healthcare provider request it.
• Requiring her to remain on leave until the baby’s birth.
• Prohibiting an employee from returning to work for a predetermined length of time after childbirth.
• Taking adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs.
• Taking adverse action against a pregnant worker because of the prejudices of co-workers, clients, or customers.

Best Practices

• Treat pregnant employees the same way you treat all of your other employees.
• When an employee informs you she is pregnant let her know of her rights under the law and that accommodation or leave is available if she needs it.
• Let her and her doctor decide if she can do her job or not.
• Tell her to let you know right away if her condition changes and she needs an accommodation.
• Don’t require medical certification, unless she requests an accommodation or time off due to her pregnancy.
• Offer light duty or accommodations to pregnant employees as you would any other employees who are similarly disabled.

Pregnant Women Today
Things have changed since the days of knitting booties and taking it easy. Today, pregnant women head up large corporations, work as police officers, run marathons, compete in sports, and perform other remarkable feats.

Here’s a list of interesting facts about pregnant women.
• Regan Schreiber crossed the English Channel when she was 11 weeks pregnant.
• Kristi Moore competed in the Olympics in the Skeleton Race while 5 ½ months pregnant.
• Aimee Roseborrough rock climbed up to her 8th month of pregnancy.
• Amber Miller completed the Chicago Marathon, and gave birth a few hours later.
• Marissa Mayer is heading up Yahoo as CEO, while pregnant.

U.S. Supreme Court to Hear Pregnancy Discrimination Case Against UPS

On July 1, 2014, the U.S. Supreme Court agreed to hear a pregnancy discrimination case against United Parcel Service (UPS). According to the Court’s Order, “the denial of workplace accommodations to pregnant workers in circumstances in which other employees receive them is a particularly common fact pattern.”

The Law

The Pregnancy Discrimination Act (PDA) prohibits employers with 15 or more employees from treating a woman differenty due to pregnancy, childbirth or related medical condition(s) in any aspect of employment.  Accordingly, an employer must provide the same leave benefits to pregnant women that are provided to employees with any other type of temporary disability.

The Facts

Plaintiff, Peggy Young, was hired by UPS in 1999 as a UPS delivery driver for “air” deliveries.  Air delivery packages are usually lighter than ground delivery, due  to the cost of shipping by air.

In 2006, Young became pregnant and in October 2006, Young provided UPS with a note from her mid-wife indicating that she could not lift more than 20lbs.  Young requested that she be allowed to do light duty.  Light duty had been previously provided in the following three situations:

  • when an employee was injured on the job
  • when an employee needs an accommodation under the ADA
  • when employees lose their truck-driving certification.

UPS, however, made it clear that light duty was not given because of pregnancy and, accordingly, UPS denied Young’s request.  Young met with a UPS Division Manager, who told her she was “too much of a liability.”

Young was forced to go out on an extended, unpaid leave of absence.

Fourth Circuit Court of Appeals Ruled in Favor of UPS

The lower court found that UPS’s policy to limit light duty to the three situations described above was a gender-neutral policy and did not constitute evidence of pregnancy discrimination.  Additionally, the court found Young’s temporary disability (pregnancy) distinguishable from workers’ compensation injuries and disabilities under the ADA.

Reasons Why Supreme Court Agreed to Hear the Case

In granting review of the Fourth Circuit’s decision, the Supreme Court chastised the lower court for “disregarding the plain statutory text” of the PDA.  The fact that Young was simply restricted in her ability to lift,  a common restriction in the three areas where UPS grants accommodations, but not allowed to continue to work was of great concern to the Court.