Putting paternity leave on equal footing with maternity leave, #hrintelchat

This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

• Don’t forget the men in your workplace when you’re crafting leave policies.
• Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
• Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
• Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

More on anticipatory pregnancy discrimination

Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.

Given all of the questions raised, I thought it best to follow up with some answers.

1. Is this case the rule or an exception?

This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the ADA in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the FMLA protect this employee?

To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.

3. How do you sleep at night (you #%*&^!)?

I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.

Nevertheless, firing an employee under these circumstances is risky. You need to make sure:

1. The employee is not FMLA-eligible.
2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
3. If there is ever a time to call you employment lawyer before firing an employee, the circumstances of this case would be that time.

Beware the “anticipatory pregnancy” claim

In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

Araceli Cadenas worked as a certified nursing assistant at a nursing and rehabilitation facility. Her position required her to pull, push, or lift at least 20 pounds. At her 15th week of pregnancy, Cadenas presented her employer a note from her doctor stating that once she reached the 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Faced with an employee who soon would be unable to perform the essential functions of her job, the company fired her.

First, the court concluded that that Butterfield had no duty to accommodate Cadenas’s pregnancy-related restrictions.

Meadowbrook was not required to accommodate Cadenas’ physical restrictions—if it would not have accommodated a non-pregnant employee’s similar restrictions—or give her any special treatment, such as light duty, if it would not have afforded that option to a non-pregnant employee. Here, there no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. Cadenas submits no competent evidence to contradict the fact that Meadowbrook denied both pregnant and non-pregnant employees an accommodation of light duty work unless they had suffered a work-related injury. This neutral policy is not evidence of discrimination.

Thus, without any duty to accommodate, Meadowbrook was entitled to fire Cadenas at her 20th week of pregnancy, because, at that time, she could not perform the basic functions of the job.

The court then turned to the timing of the termination. Was Butterfield justified in firing Cadenas at week 15, even though her restrictions did not take affect until week 20. On this issue, Cadenas’s pregnancy discrimination claim faired much better.

In this case, Meadowbrook never suggested, or provided evidence, that there was any business reason not to let Cadenas work during the five weeks remaining before her restrictions went into effect.… Without any physical restrictions applicable between weeks 15 and 20 of Cadenas’ pregnancy, Meadowbrook has pointed to no non-discriminatory reason for terminating Cadenas effective immediately.… On these facts, a reasonable jury could conclude Meadowbrook terminated Cadenas because of her pregnancy, not because she was subject to any present restrictions.

Thus, Cadenas can take her claim to a jury, but her economic damages are limited to five weeks back pay.

What can we learn from this case?

1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

[Hat tip: Judy Greenwald at Business Insurance]

You cannot fire an employee who asks for time off for his pregnant wife's medical appointment

One of the very first posts I ever wrote on this blog, all the back in May of 2007, detailed the EEOC’s then-recent publication of enforcement guidance on what it called caregiver discrimination. It seems that more than seven years later, some employers still haven’t gotten the message. Consider, for example, Rice v. Kellermeyer Company (N.D. Ohio 7/15/14).

In early 2012, Ronald Rice, the VP of Sales at Kellermeyer, announced to his co-workers that his wife was pregnant with their first child. On June 6, Rice requested permission to use vacation time from June 11 through June 15, in part because of “an unexpected appointment” for his pregnant wife. Rice’s supervisor declined to permit Rice to use paid leave for June 14 and June 15, and told him that if he “chose to take those days off, they will be unpaid.” Rice then requested FMLA paperwork from the director of human resources, to enable him to attend the appointment. Three days later, he was fired.

With these facts, the district court showed no hesitation in denying the employer’s motion for summary judgment and sending this case to a jury to decide.

In writing about this case on his FMLA Insights blog, Jeff Nowak said, “We have to stop sticking it to pregnant moms and expectant dads.” He’s 100 percent correct. We have a parental crisis in this country. No one should have to choose between a job and “an unexpected appointment” for one’s expectant wife. More broadly, no one should have to choose between a job and a family responsibility or event. 

Employers, we are facing a crisis over the issue of parental leave. The more stories we hear like Ronald Rice’s, the louder the cry will become for Congress to step in and fix this problem legislatively. Do you want new laws passed that will mandate expanded parental leave for more employers, or do you want the FMLA to remain as it is? As long as there exists employers like the employer in this case, the cry for expanded parental leave rights will continue. Eventually, it will become too loud for Congress to ignore. Be proactive with these issues in your own workplace, or Congress will become reactive. The choice is yours.

EEOC issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination

If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:

• Enforcement Guidance: Pregnancy Discrimination and Related Issues
• Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
• Fact Sheet for Small Businesses: Pregnancy Discrimination

Among the topics addressed by the EEOC are:

1. The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
2. Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
3. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
5. The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
6. The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
7. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.

All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.

Lactation at work requires reasonableness on both sides

Photo by Joelk75, via Flickr, cc

Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know all about it. What they failed to do, however, was talk to us. It was a one-sided conversation, which failed.

In Ames v. Nationwide Mutual Ins. (8th Cir. 3/13/14), Angela Ames claimed that Nationwide discriminated against her because of her sex and pregnancy by not providing her access to a room in which to lactate. We know that lactation discrimination equates to pregnancy discrimination, and yet, in Ames, Nationwide won. Why?

Nationwide won because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to even consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness room, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued.

The court explained its reasoning for affirming the trial court’s dismissal of Ames’s sex and pregnancy claims:

Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg [the nurse] tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.… That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.

The moral of this story is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because she refused to be reasonable under the circumstances. Conflict requires a give-and-take, not a give-and-give. As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor. The lactation folks at the hospitals refused to work with us, and they lost their battle. Nationwide tried to work with Ames, and, because she refused, it won their lawsuit. Let this case be a lesson to you, not only in dealing with the unique needs of lactating employees, but in resolving all conflict within the workplace.

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.