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Although women have been in the workplace for decades, employers in 2017 still face challenges in dealing with pregnant workers. This is because pregnancy triggers a series of protections for the employee and a complicated maze for employers to navigate.  These complications have spurred an uptick in charges of discrimination by pregnant workers and applicants.  For instance, in fiscal year 2015, the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing anti-discrimination laws, received 3,543 charges as opposed to 3,400 in fiscal year 2014 alleging pregnancy discrimination. As such, pregnancy discrimination is a hot topic for the EEOC.  In fact, the agency collected $ 14.8 million dollars in damages for charging parties in fiscal year 2015 asserting such claims.

Pregnancy Implicates Multiple Employment Laws

The Pregnancy Discrimination Act, which amended Title VII in 1978, prohibits discrimination on the basis of pregnancy, childbirth, or related medical condition. Under Title VII, employers may not discriminate against employees based on sex.  Therefore, pregnancy discrimination claims are brought as violations of Title VII.

For instance, in Graciani v. Patients Medical P.C., a case in the United States District Court for the Eastern District of New York, the plaintiff, a former administrative assistant, alleged that Patients Medical, a health care center, terminated her because of her pregnancy.  The plaintiff alleged that she told her supervisor that she was pregnant and 10 days later was laid off.  In those ten days she claimed that the female doctor she worked for told her she needed to wear bigger clothes, that her belly was showing, and someone cut her work shoes.  During her termination meeting, her supervisor allegedly said “you know how it is here; you know how Dr. Gulati is with pregnant people here.”  The plaintiff asserted pregnancy discrimination claims under both Title VII, New York State Human Rights Law, and New York City Human Rights Law.  Her employer moved for summary judgment on all of the plaintiff’s claims, and the Court denied the motion finding that factual issues remained.

Title VII is not the only law implicated by pregnancy. In June 2015, the EEOC issued revised guidance on this topic.  The guidance was originally issued in July 2014 but revised following the United State Supreme Court’s decision in Young v. United Parcel Service, Inc. In Young, the Supreme Court held that a pregnant employee can establish a prima facie case of disparate treatment by showing: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others “similar in their ability to work.”

The guidance makes clear that pregnancy in and of itself is not a disability. However, pregnancy related impairments might make the employee disabled under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).  Under the ADAAA, the employer is required to engage in an interactive discussion with the employee to determine what specific accommodations may help the worker.  In the case of pregnancy, common accommodations are frequent breaks, keeping a water bottle at a work station, using a stool, providing temporary assignment to light duty, leave, and altering how the job functions are performed.  Moreover, employers are required to treat pregnant employees just as they would any other worker with a disability.

Additionally, the Family Medical Leave Act (“FMLA”) allows an eligible employee to take up to 12 workweeks of leave during any 12 month period for: (1) the birth and care of the employee’s newborn child; (2 )the placement of a child with the employee through adoption or foster care; (3) to care for the employee’s spouse, son, daughter, or parent with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition.  Therefore, the pregnant employee may be entitled to FMLA leave and simultaneously an accommodation under the ADA.  Often times, applying both the FMLA and ADA together creates difficulty for employers.  For instance, while a pregnant employee may exhaust FMLA leave prior to giving birth, she might still be entitled to leave following the birth under the ADA if she develops an impairment that is considered a disability under the ADAAA.

State and local laws also provide protections for pregnant workers and formerly pregnant workers. For instance, Connecticut’s statute which prohibits discrimination on “sex” includes discrimination related to “pregnancy, child-bearing capacity, sterilization, fertility or related medical condition.” See Conn. Gen. Stat. § 46a-51.  Similarly, the New Jersey Law Against Discrimination also expressly includes pregnancy as a protected characteristic.  Additionally, many states have parental leave, caregiver leave, and paid sick leave policies that may all be implicated by pregnancy.  Moreover, local laws such as the New York City Pregnant Workers Fairness Act are also implicated.

Employers Should Proceed with Caution

In light of the number of laws potentially at play when an applicant or employee is pregnant, employers should proceed cautiously and consult counsel prior to taking any adverse employment action. Moreover, juries do not take kindly to companies that are perceived to have discriminated against a pregnant woman and by extension a newborn baby.  Therefore, failing to think through all of the implications of an adverse action can be a costly mistake.

Brody and Associates regularly provides counsel on FMLA, civil rights, as well as employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.