Pregnant Workers Entitled to Reasonable Accommodation

The EEOC has issued an enforcement guidance that makes it clear that an employer must make reasonable accommodations for pregnant workers who experience a medical need for a temporary change at work.

The Pregnancy Discrimination Act of 1978 (PDA) states that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions.  However, many employers took the position that it did not require them to make reasonable accommodations for pregnant workers. For example, if a pregnant worker’s job required her to stand for long periods, the employer would fire the worker if she was temporarily unable to do so rather than provide her with a chair.

Pregnant workers were treated like second-class citizens compared to workers who were injured or disabled. The Americans with Disabilities Act (ADA) clearly states that employers must make reasonable accommodations for individuals who are injured or  disabled.

[Read more…]

Shift Expected on Pregnancy Accommodation

Should employers treat pregnant employees who suffer temporary disabilities the same way they treat other employees with temporary disabilities?

Yes, says the U.S. Office of the Solicitor General.

However, Solicitor General Donald B. Verrilli Jr,  says most federal appellate courts who have addressed the issue have decided it incorrectly by holding that employers do not have to accommodate pregnant workers who suffer temporary pregnancy-related disabilities.

Verrilli nevertheless recently recommended that the U.S. Supreme Court decline to review a case in which Peggy Young, a  United Parcel Service driver, was denied “light duty” work when she was pregnant, despite a  doctor’s note stating she should not lift more than 20 pounds during the first half of her pregnancy and not more than 10 pounds for the second half.

Verrilli said two developments may prompt courts to re-assess the issue of pregnancy accommodation. He said the  U.S. Equal Employment Opportunity Commission is “currently considering the adoption of new enforcement guidance on pregnancy discrimination.”  He also said 2008 amendments to the Americans with Disabilities Act  cover a broader scope of impairments.  Pregnant workers who can’t get protection under the Pregnancy Discrimination Act of 1978 (PDA) may have better luck with the ADA, he said . [Read more…]

Settlement is Mother’s Day Gift to Working Mothers

On the heels of Mother’s Day,  a Texas woman has won an important victory for all nursing mothers in the workplace.

Donnicia Vetters  accepted an out of court settlement of $15,000  on the eve of a trial in her lawsuit alleging pregnancy discrimination by her former employer, Houston Funding II, LLC, a Houston, TX,  debt collection agency.  After giving birth in 2012, Vetters inquired whether  she would be able to pump breast milk when she returned to her job.  Her boss allegedly responded by telling her that her position had been “filled.”

If that wasn’t outrageous enough,  U.S.  District Judge Lynn N. Hughes of Houston summarily  dismissed Vetters’ lawsuit against Houston Funding on the grounds that “lactation is not pregnancy, childbirth, or a related medical condition.” He said that “firing someone because of lactation or breast-pumping is not sex discrimination.” Judge Hughes, who is male, suggested that “pregnancy-related conditions” end on the day that a mother gives birth.

Fortunately, Judge Hughes’ opinion was unanimously reversed by the U.S. Court of Appeals for the Fifth Circuit, which held that firing a woman because she is expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.

Ms. Vetters was represented in the case by the U.S. Equal Employment Opportunity Commission.

In  EEOC v. Houston Funding II, LLC, the Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, the court said, firing a woman because she is expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.

Instead of showing some decency, acknowledging fault and apologizing to Ms. Vetters, an attorney for Houston Funding was quoted as blaming the EEOC for forcing it to pay up.

The monetary settlement won’t put Ms. Vetters’ baby through college, and won’t compensate for the loss of a job in a difficult economy, but it is a great victory for all working mothers to know that they can’t be fired simply because they choose to nurture their infants with breast milk.

Pregnancy Discrimination Act: 35 Years Later

No Accommodation Requirement

Thirty five years ago this week, President Jimmy Carter signed into law the Pregnancy Discrimination Act of 1978 (PDA).

The PDA,  an amendment of Title VII of the Civil Rights Act, has proven to be a weak tool to combat  a major societal problem;  It  requires employers to treat pregnant women like others in the workplace but  it does not require employers to make even minimal accommEEOCodation for pregnancy-related conditions  (such as difficulties standing for long period, lifting restrictions, insufficient bathroom breaks, etc.).

Efforts last year to address the PDA’s shortcomings died in the U.S. Congress but the U.S. Equal Opportunity Employment Commission (EEOC) in its 2013-2016 strategic plan  identified combating pregnancy discrimination as a top priority. The EEOC, which is responsible for enforcing the PDA, characterizes the problem as an “emerging and developing” issue. Specifically, the EEOC said it would address the problem of “accommodating pregnancy-related limitations” under the Americans with Disabilities Act Amendments Act and the PDA.

The EEOC and Fair Employment Practice Agencies around the country reported 5,797 complaints of pregnancy discrimination in 2011.

True to its word, the EEOC has filed a spate of lawsuits this year to combat pregnancy discrimination. Most, if not all,  of these lawsuits involve individual defendants and somewhat minor settlements but the EEOC’s effort raises awareness of the problem and, hopefully, puts employers on notice that they are being watched.

 Lawsuits Filed

Here is a sampling of the lawsuits filed this year by the EEOC involving the PDA:

  •  EEOC v. Reed Pierce’s Sportsman’ Grille:  A woman who was four months pregnant with her first child was fired because, her supervisor allegedly said, “The baby is taking its toll on you.”  The EEOC  filed suit in the U.S. District Court for the Southern District of Mississippi.  After the defendant lost two motions to dismiss the case, it settled for $20,000.
  • EEOC v. Ramin, Inc.:   Ramin Inc., the owner of a Comfort Inn & Suites, allegedly fired a  housekeeper after she reported her pregnancy because of supposed concerns about potential harm that her job could cause the baby.  The EEOC filed suit in U.S. District Court for the Eastern District of Michigan. The defendant agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages.
  • EEOC v. Engineering Documentation Systems, Inc.:  A management official allegedly made derogatory remarks about a pregnant worker and  refused her request to move her office closer to the restroom to accommodate her nausea.  While she was out on leave, the company changed her job description and then terminated her.  The EEOC filed suit in the U.S. District Court for the District of Nevada. The defendant agreed to pay $70,000 to settle the case.
  • EEOC v. James E. Brown & Associates, PLLC:  A  Washington based law firm offered Zorayda J. Moreira-Smith a position as an associate attorney in January 2011.  The firm allegedly rescinded its job offer  the same day after when Moreira-Smith told them she was six months pregnant and asked the firm about its maternity leave policies.  The EEOC filed suit in the U.S. District Court for the District of Columbia. The defendant agreed to pay an $18,000 settlement,  to implement a non-discrimination policy and  to provide training to the firm’s personnel.
  • EEOC v. Platinum P.T.S. Inc. D/B/A/ Platinum Production Testing Services:  A clerk  requested time off for medical treatment relating to her miscarriage.  After she missed five days of work,  the defendant fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Texas. The defendant agreed to pay $100,000 to settle the pregnancy discrimination suit.

U.S. Sen. Robert Casey, Jr., of Pennsylvania proposed the Pregnant Workers Fairness Act (PWFA) in 2012 to guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer. The bill died in committee.