A weighty lesson on pregnancy discrimination

It’s the first full week of January, which means that lots of people are attempting to execute on their New Year’s resolutions. Many of those resolutions will focus on weight loss. What if your company does the same, and decides, for wellness or other reasons, not to hire anyone over a certain weight? If your company is in the business of weight loss, like Weight Watchers, for example, such a policy makes a lot of sense. What if, however, that policy results in your company refusing to hire a pregnant woman? Does your “no overweight hires” policy violate Title VII by screening out pregnant women?

According to EEOC v. WW Group (E.D. Mich. 12/2/13), the policy fails as violating Title VII’s proscription against pregnancy discrimination:

On the facts of this case, a reasonable juror could conclude that Broughton’s weight gain putting her above her goal weight was solely attributable to her pregnancy, that this weight gain was totally unrelated to her ability or inability to perform the job (as evidenced by the fact that WW permits pregnant group leaders to continue to conduct group meetings) and that she was wrongly denied the right to apply for a position with WW.

In this case, however, WW’s policy did not cause it’s downfall. WW caused its own downfall through its uneven adoption of two conflicting policies. The EEOC challenged WW’s refusal to hire Wendy Lamond-Broughton as a group leader or receptionist because her pregnancy caused her to weigh-in over her goal weight. According to WW, there are “legal, moral, and ethical reasons” not to hire Broughton, because the public will question its credibility as a company if its own employees appear not to be following the program. Yet, WW does not apply the same rules to those it already employs. If a current employee weigh in over their goal weight as a result of pregnancy, WW does not terminate them, but instead permits them to work until a doctor says otherwise. Thus, because current pregnant, overweight employees can keep their jobs, the “legal, moral, and ethical” business justification for refusing to hire Broughton falls apart.

This case has a lesson deeper than merely, “Don’t have a policy that screens out pregnant women.” If you are going to have such a policy, make sure that you can justify its existence. If WW refused to allow anyone over their goal weight to work for the company, then this case would have ended differently. Once, however, WW allowed some overweight pregnant women to work, it lost the ability to argue that a legitimate, non-discriminatory business reason supported its decision not to hire Broughton.

Is infertility fertile grounds for disability discrimination claims?

I’ve written before about employers getting themselves in trouble for pregnancy discrimination for firing employees while undergoing fertility treatments (here and here). Last week, the EEOC announced the settlement of case involving a different kind of “infertility” discrimination—the Americans with Disabilities Act.

A Hawaiian resort retailer will pay $60,000 for discriminating against an employee because of her fertility treatments and eventual pregnancy.… According to the EEOC’s suit, a female retail buyer in Honolulu informed the company that she began treatments for infertility in 2011. Upon disclosure of her disability, a company official allegedly made offensive comments about her intentions and became even less receptive upon disclosure of her pregnancy later that same year. The buyer was disciplined after disclosing her need for fertility treatments, and then discharged.… 

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability—with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores, Inc. (W.D. Mich. 2001), a federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the Act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments, or otherwise discriminate against employees undergoing fertility treatments, could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.” In other words, this issue is very much on the EEOC’s radar.

Infertility and its treatments are stressful on parents-to-be. Unless you’ve experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it’s difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, are both time consuming and time sensitive. Do not exacerbate an employee’s stress by toying with their time away from work. Moreover, with this issue on the EEOC’s enforcement radar, employers that deny time off for fertility treatments may find themselves as the start of the EEOC’s next infertility-related press release.

Is the denial of paid paternity leave discriminatory?

ABCNews.com is reporting that a CNN reporter, Josh Levs, has filed an EEOC charge against Time Warner challenging its family leave policy as discriminating based on sex.

Levs, whose wife just gave birth to their third child, claims that his employer treats biological fathers differently. He claims that Time Warner’s policy permits 10 weeks of paid leave to women who give birth to children, or male and female parents following adoption or surrogacy. Biological fathers, on the other hand, are limited to two weeks of paid leave. This treatment, Levs says, discriminates against him as a man.

On his Tumblr, Levs makes a compelling argument for the unfairness of Time Warner’s policy:

If I were a woman, but other elements of my situation were the same — I was still with the same woman (so that would be a same-sex relationship), and she gave birth to our child, legally I would have to adopt in order to be co-parent. I would then have the option of 10 weeks off, paid.

Or how about this: If I gave my child up for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her. I, however, her biological father, can’t.

The visceral reaction to a story such as Levs’s is to say, “Time Warner is treating men and women differently; therefore, it’s sex discrimination. Case closed.” The question, however, isn’t whether the policy is fair, but whether it’s legal.

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy. As Time Warner points out, its policy provides 10 weeks of paid leave, more generous than the medical standards and the FMLA’s guarantee of unpaid leave.

Yes, Time Warner’s policy can lead to absurd results in extreme situations, as Levs points out. But, before we jump the gun and lynch the company from the sex-discrimination gallows, we need to consider that there might be an explanation that justifies its policy other than discrimination.

Life imitating art? Pregnant and fired — when will employers learn?

The Ohio Chamber of Commerce brings us this funny video about how not to fire pregnant employee:

Sadly, life sometimes imitates art.

Last week, the EEOC announced that it had sued a Mississippi hotel operator for … you guessed it … pregnancy discrimination:

According to the EEOC’s suit, Te’Shawn Harmon informed her manager of her pregnancy on her first day of work.  That evening, the manager terminated Harmon and replaced her with a non-pregnant employee.

Ugh. Some call it stupidity. I like to think of it as job security.

Lactation discrimination = pregnancy discrimination

Last February I reported on EEOC v. Houston Funding, in which a Texas district court held that an employee, fired after asking to pump breast milk at work, could not go forward with her pregnancy discrimination claim. The court reasoned that because lactation does not start until after pregnancy, it is not a condition “related to” pregnancy, and therefore the Pregnancy Discrimination Act amendment to Title VII do not protect lactation as sex discrimination.

At the time, I urged everyone not to overreact to one anomalous decision:

[T]he last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination. ...

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that ... Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate.

Late last week, the 5th Circuit agreed, and reversed the district court’s decision dismissing the case. Specifically, the court held that lactation is a medical condition related to pregnancy because it is a “physiological result of being pregnant and bearing a child.” In reaching this conclusion, the court analogized lactation to other physiological changes women undergo during and immediately after pregnancy:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”

To simplify matters, because men cannot lactate, it is discriminatory to deny an employee’s lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

When you couple this decision with the FLSA’s recent amendment that require employers to accommodate workplace lactation needs, it is more clear than ever than employees have a workplace right to lactate.

You can download a pdf of the 5th Circuit’s EEOC v. Houston Funding decision here.

Hat tip: Workplace Prof Blog

Take a pregnant pause before firing that pregnant worker

Two pregnancy discrimination settlements recently announced by the EEOC illustrate the added risk employers assume when firing a pregnant worker.

• In the first case, a Chicago-based childcare center paid $31,000 to settle allegations that it had forced a pregnant employee to quit by refusing to allow her to work after her fourth month of pregnancy.

• In the second case, a Detroit-area hotel paid $27,500 to settle allegations that it had fired a housekeeper out of fear of potential harm to the development of her baby.

Last week, I wrote about whether an employer should choose to litigate a case or settle early. One consideration I did not cover, perhaps because it seems like common sense, is that the merits (or lack thereof) of the case can be a driving factor. In discussing the case involving the childcare center, the EEOC’s Chicago regional attorney underscored this important factor: “Really early resolution of this case—before any depositions were taken created a win-win situation for everyone. This employer avoided investing in litigation expenses which would not have yielded a different result and was able refocus on its business in a hurry.” Given the risk presented by these cases and the relatively low value settlement payments, it’s hard to argue with his opinion on the value of early resolutions.

Firing a pregnant employee is a risky proposition. You not only have to worry about Title VII, but also potential liability under the FMLA (if you are large enough to be covered), and the ADA (if the employee suffers from a pregnancy-related medical condition). Unless you want to face a settle-or-litigate Hobson’s choice, you need to think long and hard before firing, or taking any other adverse action against, a pregnant worker.

Are employers screwing up the FLSA’s lactation mandate? Probably not.

At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the FLSA’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the DOL had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the EEOC’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the DOL in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the DOL considers to be a significant difficulty or expense.

• Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

• In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.

Say it ain’t so: court holds an employer does not have to accommodate a pregnant employee

Last year, I railed against the Pregnant Workers Fairness Act, a bill that, if passed, would require employers to make a reasonable accommodation for an employee’s pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through the Pregnancy Discrimination Act, already requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition.

Last week, in Young v. UPS, the 4th Circuit Court of Appeals held that Title VII does not require employers to provide pregnant women a “reasonable accommodation” when, as a result of pregnancy, they are limited in their ability to perform work duties. Was my musing about the evils of the Pregnant Workers Fairness Act off-base?

The facts of Young are simple. UPS required Ms. Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree the employer accommodated a disabled employee. The 4th Circuit rejected her argument, finding that where an employer’s policies treat pregnant workers and non-pregnant workers alike, it has complied with Title VII:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA.

Reading this decision, you might be thinking to yourself, “Hyman, you’re wrong. Title VII does need to be amended to grant accommodation rights to pregnant women.” You, however, would be jumping the gun.

As Robin Shea astutely observed at her Employment & Labor Insider, because of 2009’s ADA Amendments Act, today’s ADA is very different than the statute in effect during Ms. Young’s 2006 pregnancy:

In 2007, the “old” Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered “disabled.” Not only was a 20-pound lifting restriction generally not considered “disabling,” but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a “disability” in itself because the ADA says so. Accordingly, Ms. Young was out of luck.

The ADAAA, of course, greatly expanded the definition of “disability,” and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered “disabling.” Ditto for a 20-pound lifting restriction.

In other words, today an employer could be required to provide a reasonable accommodation to a pregnant employee to the same extent it provides a non-pregnant disabled employee an accommodation, or face the possibility of a pregnancy discrimination lawsuit.

Handling accommodation requests by pregnant employees is a thorny area of the law. My recommendation is instead of trying to sort through these issues for yourself, you contact your employment counsel before denying an accommodation request made a pregnant employee.

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Thanks to Justine Konicki for her help on this post.

New pregnancy discrimination legislation is unneeded, redux

On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

On the New York Times’s Motherlode blog, KJ Dell’Antonia discusses her belief that we need another law to protect pregnant women in the workplace:

Pregnancy is specifically not covered under the Americans With Disabilities Act, which requires that employers provide reasonable accommodations to disabled employees who need them to do their jobs…. But to have a healthy pregnancy, women must make adjustments—call them accommodations—for the baby they’re carrying…. Pregnant women are protected by the federal Pregnancy Discrimination Act, but protection against discrimination does not require accommodation. Sometimes equal treatment is not enough to allow a woman to stay on the job—and no one benefits from pregnant women being forced to choose between her doctor’s advice and her supervisor’s demands.

Ms. Dell’Antonia then lends her support to a nascent piece of federal legislation, The Pregnant Workers Fairness Act.

I take issue with Ms. Dell’Antonia’s central premise that the Pregnancy Discrimination Act does not require accommodations for pregnant workers. The PDA requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

We do not need legislation to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. The PDA already implicitly allows for these accommodations. I’m not taking a stand against the rights of pregnant women (which I support). I am, however, taking a stand against duplicative legislation, regardless of the soundness of the policy or the worthiness of the beneficiary.

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

Let’s try not to over-react to the breastfeeding discrimination case

Last month, I wrote that employers denying lactation rights to employees was not problem that needed remedial legislation. Wouldn’t you know it, news broke last week of a federal judge in Houston who dismissed a sex discrimination case—EEOC v. Houston Funding [pdf]—in which the employee alleged that she was fired because she asked to pump breast milk at work.

Here’s the court’s entire analysis dismissing the lawsuit:

The commission says that the company fired her because she wanted to pump breast milk. Discrimination because of pregnancy, childbirth, or a related medical condition is illegal….

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she wanted to pump breast milk — lactation is not pregnancy, childbirth, or a related medical condition.

She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination.

Before I put on my employer-advocate hat, let me go on record and say that the last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination.

This decision has people angry. As of this morning, the case’s online docket reflects that 12 private non-parties have emailed the judge calling her ruling “shameful” and “absurd” (among other similar pejoratives).

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that 1) Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate; and 2) we do not need any additional legislation (on top of the Patient Protection and Affordable Care Act) to further to protect this right (EEOC v. Houston Funding notwithstanding).

For additional analysis of this case, I suggest checking out the thoughts of some of my fellow bloggers from last week:

• Does Federal Law Prohibit Lactation Retaliation? — from the Delaware Employment Law Blog
• Lactation and Nursing Is a Civil Rights Issue — from Outten & Golden Employment Law Blog
• Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge — from Screw You Guys, I'm Going Home
• Lactation not Related to Pregnancy, Says Federal Judge — from San Antonio Employment Law Blog
• Expressing Milk Under Title VII and the PPACA — from LaborRelated
• Lactation is Not a Condition Related to Pregnancy Says S.D. Tex. — from Workplace Prof Blog

The word of the day is “systemic”

The EEOC has published its draft strategic plan for fiscal years 2012 – 2016. A quick Ctrl-F for the word “systemic” reveals 16 different hits in this relatively short document.

“Systemic” cases, according to the EEOC, are those that “address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The identification, investigation, and litigation of this category of cases remains a “top priority” of the agency. When the EEOC publishes the final version of its strategic plan, expect to see a target percentage of systemic cases in the agency’s litigation pipeline.

What does this mean for employers? It means that company-wide policies that have the potential affect certain groups more than others very much remain on the EEOC’s enforcement radar. What are some of these issues for employers to heed:

• Arrest and conviction records
• Work-life balance and the plight of working moms
• Religious accommodations and “look” policies
• Leave of absence policies
• Credit histories
• Employment status 
• Age 

Keep an eye on these issues, because you can bet the EEOC will be (at least for the foreseeable future).

Pregnancy as disability discrimination: New ADA vs. Old ADA

A year ago, the 6th Circuit concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify for protection under the ADA. Late last month, the 7th Circuit—in Serednyj v. Beverly Healthcare—took up the same issue with a different result. Employers looking for help in dealing with pregnant employees should not celebrate too quickly. Because Serednyj’s termination occurred before the ADAAA took effect, its impact will be short-lived.

Serednyj involved a non-FMLA-eligible employee terminated after her doctor placed her on light duty for pregnancy-related complications. The court agreed that Serednyj’s complications constituted a “physical impairment” under the ADA. It upheld the dismissal of her ADA claim, though, because the short-term nature of her pregnancy meant that it did not “substantially limited a major life activity.”

Serednyj claims that her physical impairment substantially limited her major life activities of reproduction and lifting…. Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle…. Serednyj’s pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth.

This case is an illusory victory for employers. Under the ADAAA, which took effect January 1, 2009, the effects of a short-term impairment (one lasting fewer than six months) can be substantially limiting. Employers no longer can expect to be helped by the limited duration of any medical condition (including pregnancy). As the ADAAA’s regulations make clear: “the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.”

Under a current ADA analysis, I have no doubt that Beverly Healthcare should have accommodated Serednyj’s pregnancy complications by granting her light duty. Despite the employer’s victory in this case, businesses should heed it as a warning that the rules for handling all employee medical conditions—including pregnancy—have radically changed.

[Hat tip: The Employer Handbook]

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

How NOT to respond to an employee’s pregnancy

If an employee with low sales numbers announces her pregnancy, do you:

1. congratulate her and continue to treat her the same as before the announcement, or
2. ask others, “What are we going to do about that?”

According to the plaintiff in Majer v. Lexion Medical, her employer chose option 2, and will pay the price for it.

When the court put that damning statement together with evidence that the employer did not terminate at least one non-pregnant employees with worse sales numbers than the plaintiff, it concluded that it had “serious doubts” about the legitimacy of the decision-making process that led to the termination. In more technical terms, it denied the employer’s motion for summary judgment, sending the case to a jury trial.

As long as managers and supervisors make these types of comments, I won’t worry too much about the viability of my chosen line of work.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“You’re pregnant. We can’t hire you.”

There are some things you just shouldn't say to a pregnant job applicant—such as, “You’re pregnant. We can’t hire you.” But, that's exactly what a Phoenix, Arizona, Subway manager told Belinda Murillo when she inquired about the status of her job application. What’s even more amazing than the fact that he made the statement is that he admitted to it during her subsequent pregnancy discrimination lawsuit. The bonus points one typically receives in litigation for candor and honesty don’t apply when you’re copping to discrimination. Thus, it is not all that surprising that based on these facts, in EEOC v. High Speed Enterprise, Inc., the court granted summary judgment in favor of the employee.

The lesson from this case is to be reasonable when evaluating risk in defending a lawsuit. Faced with these facts, this case screamed for a settlement. Instead, this employer found itself ensnared in three years of litigation with the EEOC (including 17 depositions, numerous discovery disputes, and a vibrant motion practice), with a jury trial on damages still on the horizon. At the hourly wage of $6.50 Murillo would have earned as a Subway Sandwich Artist, this case should not have been that difficult to settle. Even in the face of these egregious facts, $15,000 should been more than enough to have resolved this case. The fact that it did not resolve reveals a breakdown in the plaintiff’s evaluation of value, the defendant’s evaluation of risk or value, or both.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:

[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 

The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.

Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:

Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 

Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 

Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.

The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.

Ohio Supreme Court rules that employers do not have to provide pregnant employees greater leave rights than non-pregnant employees

Yesterday, the Ohio Supreme Court handed businesses a huge victory on the issue of pregnancy leave rights.

Pataskala Oaks Care Center had a written policy that required all employees to work for a year before becoming eligible for leave for any reason. It fired Tiffany McFee three days after she gave birth because she was absent from employment before she had become eligible for leave under that policy. McFee sued for sex discrimination. The court of appeals held that Ohio’s antidiscrimination laws require that employers provide employees with a reasonable period of maternity leave, and the at-issue policy that denied McFee leave was direct evidence of sex discrimination.

In McFee v. Nursing Care Mgmt. of Am. (6/22/10) [pdf], the Ohio Supreme Court disagree, and held:

An employment policy that imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave is not direct evidence of sex discrimination….

In reaching this decision, the Court pointed out that the pregnancy discrimination laws do not require preferential treatment for pregnant employees. They merely mandate that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work. Because the at-issue length-of-service requirement is pregnancy-blind—it treats all employees the same by requiring every employee to 12 months of employment before becoming eligible for leave—it is not direct evidence of sex discrimination.

The court also harmonized Ohio’s pregnancy discrimination regulations on mandatory maternity leave—Ohio Adm. Code 4112-5-05(G)(2) and (G)(5).

• (G)(2) provides: “Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination.”
  
• (G)(5) provides: “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer’s leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing.”
  

The Court recognized the potential tension between these two provisions. (G)(2) appears to indicate that a policy providing no leave is discriminatory, while (G)(5) states that a uniform minimum-length-of-service requirement for leave eligibility is permissible. But:

Reading these rules in light of the statutory purpose, Ohio Adm.Code 4112-5-05(G)(2) must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition…. This interpretation of the rule harmonizes (G)(2) with (G)(5), which specifies that when a woman qualifies for leave, the leave provided for childbearing must be reasonable.

Thus, an employer may terminate a pregnant employee who has not yet met a minimum-length-of-service requirement under a neutral leave policy. There are a three key takeaways for employers from this case.

1. Leave policies must be neutral. An employer cannot have a maternity leave policy with a length-of-service requirement, and a different leave policy for other situations with no length-of-service requirement, or one of a shorter duration.
   
2. Employers do not have to offer maternity leave to employees. However, if leave is offered for any reason, it must include maternity leave in at least the same amount and on the same conditions as other types of leave.
   
3. Merely having a neutral policy does not grant an employer carte blanche to terminate pregnant employees or new moms. The policy must still be applied equally to all employees with similarly disabling conditions. If new-employee Bill in accounting needs six weeks off to recover from back surgery, you cannot let Bill take the time unless you are prepared to similarly ignore the length-of-service requirement for all pregnant employees. Otherwise, you are opening yourself up to a claim of pretext—that the application of the facially neutral policy is a pretext for pregnancy discrimination.