Showing posts with label pregnancy discrimination. Show all posts
Showing posts with label pregnancy discrimination. Show all posts

Wednesday, August 1, 2018

The worst employer of 1969

1969. Woodstock. Abbey Road. The Moon Landing.

And pregnancy discrimination.

Tuesday, April 24, 2018

Maternity leave does not guarantee continued employment

By Grand Parc CC BY 2.0 via Wiki Commons
Michelle Bailey worked in the human resources department of Oakwood Healthcare. During her maternity leave, her immediate supervisor and others assumed her responsibilities, and discovered certain deficiencies in how she performed her job.

Discovery of those deficiencies led the supervisor to review Bailey’s qualifications as set forth in her employment application. That review, in turn, uncovered an application Bailey had submitted for a different position at Oakwood two years earlier. A comparison of Bailey’s two resumés on file lead to the conclusion that Bailey had falsified her later application by exaggerating her prior experience and qualifications.

That discovery, coupled with the performance deficiencies, caused Oakwood to terminate Bailey’s employment upon her return from maternity leave.

Thursday, August 18, 2016

Hard to believe that overt pregnancy discrimination still exists … yet it does

Pregnancy discrimination has been unlawful under federal law since 1978. You’d think by now employers would have learned their lesson—that women should not have to choose between being pregnant and being employed. Yet, this recent story from the Washington Business Journal suggests otherwise.

Tuesday, July 12, 2016

Paternalism vs. pregnancy discrimination

Paternalism and pregnant workers do not mix. Case in point? According to this EEOC press release, the agency has sued a North Carolina retail-furniture franchise for pregnancy discrimination.

Thursday, June 16, 2016

EEOC on pregnancy-related limitations and restrictions at work

It’s been nearly a year since the EEOC updated its administrative guidance on pregnancy discrimination to account for the Supreme Court’s holding in Young v. UPS regarding an employer’s obligations to accommodate its pregnant workers.

In case the EEOC’s guidance is too dense for you to digest, the agency has chosen to commemorate its participation in the White House United State of Women Summit with the publication of two new pregnancy-related resources.

Monday, May 2, 2016

Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance

I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”

The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.

Wednesday, April 6, 2016

Ohio introduces unnecessary pregnancy legislation

Last week, the Pregnancy Reasonable Accommodation Act (S.B. 301) [pdf] was introduced in the Ohio Senate. The bill seeks to raise pregnancy to the level of a protected disability.

Wednesday, September 16, 2015

Reminder: You cannot decide when a pregnant employee can and cannot work

The EEOC recently announced that it has filed suit against a Texas home healthcare company for terminating a pregnant employee. The EEOC describes the key allegations:

EEOC charges in its suit, that Zanna Clore was told to obtain a doctor’s note after the employer learned of her pregnancy. Shortly thereafter, Clore provided Your Health Team with a release from her physician stating Clore could perform all job duties with the only limitation being that she should not lift or pull more than 25 lbs. Despite the medical release to work, the employer terminated her employment just minutes after she furnished the required note.

EEOC regional attorney Robert A. Canino sums up everything that is (allegedly) wrong with this employer’s action:

As a society, we should have already evolved well beyond the old-school thinking that a pregnant worker must be excluded from the workplace. Fortunately, the highest court in the land, in Young v. UPS, recently emphasized the employer’s responsibility to accommodate pregnant employees and thereby avoid discrimination against working women.

When an employee informs you that she is pregnant, your decision is not whether to fire her, but instead whether she can perform the essential duties of her job during her pregnancy. If she has physical limitations because of her pregnancy, you must accommodate her on the same terms and conditions as others who are similar in their ability or inability to work. In other words, if a pregnant employee cannot perform an essential function of lifting more than 25 pounds, and you have previous accommodated other non-pregnant employees in that job with similar lifting restrictions, then you must offer the same accommodation to the pregnant employee. It is not up to you to decide whether your pregnant employee can, or cannot, continue working.

Wednesday, July 1, 2015

EEOC updates pregnancy discrimination guidance to embrace accommodations

In the wake of the Supreme Court’s decision in Young v. UPS, the EEOC has updated its administrative guidance on pregnancy discrimination. The updated guidance includes Enforcement Guidance on Pregnancy Discrimination And Related Issues, a Q&A, and a Fact Sheet for Small Businesses.

The most notable inclusion is updated guidance on an employer’s obligation to provide reasonable accommodation to a pregnant worker.
From the Q&A:
May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave? 
No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
  • may not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
  • may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
  • may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
  • must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one? 

Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense. 

Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:
  • Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
  • Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
  • Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
  • Allowing a pregnant worker placed on bed rest to telework where feasible;
  • Granting leave in addition to what an employer would normally provide under a sick leave policy;
  • Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
  • Temporarily reassigning an employee to a light duty position.

As the new guidance makes abundantly clear, while an employer cannot compel a pregnant employee to take an accommodation (such as a leave) if she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave (or other accommodations) on the same terms and conditions as others who are similar in their ability or inability to work. Thus, the EEOC has confirmed, as I’ve consistently said (here and here, for example), that if employers grant employees accommodations under the ADA, Title VII will almost certainly compel them to do the same for pregnant employees.

Wednesday, March 25, 2015

BREAKING: McDonnell Douglas lives! #SCOTUS applies decades-old test to pregnancy accommodation claims

This morning, the U.S. Supreme Court issued one of its most anticipated employment-law rulings of this term, in Young v. United Parcel Service [pdf]. The case asked under what circumstances an employer must provide a workplace accommodation to a pregnant employee.

In its ruling, the court rejected the positions offered by both the employer and the employee.

  • UPS argued that the Pregnancy Discrimination Act requires courts to compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. The Court rejected this argument as too narrow of a reading of the statute.
  • Young argued that the PDA requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work. The Court rejected this argument because the PDA, on its face, does not grant pregnant workers an unconditional “most-favored-nation” status.

Instead, the Court crafted its own interpretation by applying a modified McDonnell Douglas analysis to pregnancy accommodation claims:

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates….

If the employer offers an apparently “legitimate, nondiscriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.

What’s the problem with this decision? As Justice Scalia astutely and correctly points out in his dissent, by permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact. What does this mean for employers? It means that employers must analyze the impact of work rules on pregnant workers and accommodate accordingly. Thus, in application, the majority’s rule grants pregnant workers the unconditional “most-favored-nation” status that the majority says it was rejecting.

My practical take for handling pregnant workers remains unchanged. Unless you can unequivocally demonstrate that you’ve never provided an accommodation to a disabled worker, you should be prepared to offer the same to your pregnant workers.

Wednesday, January 14, 2015

Beware the pregnancy accommodation claim

On Monday I published my list of the five biggest issues employers need to watch and manage in 2015. I listed “pregnancy leave rights” as number five. In reality, though, that issue could easily have been number one.

Consider that earlier this week, USA Today told the story of a North Carolina nursing assistant, who claims that she was forced to resign from her job after her employer refused to provide light duty to accommodate the medical complications of her pregnancy. According to the story, “The nursing home regularly provided ‘light duty’ to workers unable to lift, Cole says in the complaint. On light duty, nurse assistants can feed and clean residents and assist with oxygen tubing and nebulizers, she added.

This issue is not going away. Charges filed with the EEOC alleging pregnancy discrimination have increased by nearly 50% over the past 15 years. Moreover, women comprise nearly half of the workforce, and 75% of them will become pregnant at some point. Couple those stats with the fact that 40% households with children have mothers who are either the sole or primary source of income for the family, and you can see why this issue is so critical to the American worker (and, consequently, the American employer).

Yet, this should be a non-issue for most employers. Just this past summer, the EEOC issued enforcement guidance that affirmed my long-held belief that employers may have to provide light duty for pregnant workers, and must provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions. This rule will impose a light-duty obligation on most employers.

Ask yourself—

  • Have I ever provided light duty to expedite the return-to-work of an employee with a work-comp claim?
  • Have I ever provided light duty to an employee as an ADA reasonable accommodation?

If you answer “yes” to either of these questions (and most employers will), then you cannot deny the same light duty to a pregnant worker.

Thursday, December 4, 2014

Reading the #SCOTUS tea leaves: Young v. UPS and pregnancy accommodations

Yesterday, the Supreme Court heard oral argument in Young v. UPS, which will decide whether Title VII requires an employer to accommodate pregnant workers the same as non-pregnant workers similar in their inability to work.

UPS required Peggy 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’s lawsuit argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree it accommodated a disabled employee. The 4th Circuit disagreed, finding that UPS’s policies did not treat pregnant workers less favorably, but the same as any other worker who did not meet the specific requirements for light duty under the CBA. 

The case may hinge on where the justices fall on the right comparator for UPS’s pregnant workers. Is it those employees who are ADA-disabled or otherwise injured on-the-job, whom UPS accommodates, or those non-ADA employees injured off-the-job, whom UPS does not accommodate.

As one would expect, the Justices appear to be split down ideological (maybe gender) lines, and, as is often the case, Justice Kennedy may be the key that will unlock this issue. He, however, was relatively quiet during the argument, only asking a handful of questions, which failed to shed any light on his thought process. Truth be told, it was a very curious argument, and the case, at least based on the Justice’s queries, is not easily predictable.

I am hopeful that the court will side with working parents and rule in favor of the employee in this case. A ruling for UPS would, I fear, promote the unequal treatment of pregnant workers, which is anathema to the spirit, if not the letter, of the Pregnancy Discrimination Act. No employer should be allowed to act as if it is exempt from the law.

A PDF of the compete oral argument transcript is available here.

Wednesday, November 19, 2014

Jury verdicts are just numbers on a paper

On Monday, a California jury awarded a former Autozone employee $185 million in punitive damages. She had sued the company for pregnancy discrimination, claiming that the district manager who fired her was promised a promotion if he fired all of the women in his stores. Last week, the same jury awarded the plaintiff $900,000 in compensatory damages for lost wages and emotional distress.

While $185 million is a staggeringly huge number, this plaintiff will only ever collect a tiny fraction of it, at best. Due process tells us that punitive damages must bear some reasonable relationship to the size of the compensatory award, typically not to exceed a ratio of 9:1.

Moreover, if this case was filed in Ohio, and not California, damage caps would kick in to severely restrict the verdict. Ohio’s tort reform law caps punitive damages in state-law employment discrimination claims to two-times the compensatory award. Thus, in Ohio, this plaintiff’s punitive award would cap at $1.8 million, still a large number, but out of the nine-figure stratosphere.

Jury verdicts are headline grabbers—big splashy numbers that grab everyone’s attention. Trust me, Autozone’s attention has been grabbed. It will file a motion to reduce the jury verdict, and it will appeal, while, at the same time, this plaintiff will file motions seeking her attorneys’ fees. Ultimately, this case will confidentially settle, and we will never know the final dollars exchanged.

More damaging than the amount of the award is the negative publicity associated with it. Because of the verdict’s inordinate size, the press has labeled Autozone as a company that discriminates against women in the worst way possible—systemically and intentionally. That damage is much worse than this employee punching a lotto ticket that she will never cash.

Wednesday, November 12, 2014

Recap of #hrintelchat on pregnancy discrimination

Yesterday afternoon, Jeff Nowak and I had a lively tête-à-tête on Twitter—aka the #hrintelchat—on all things pregnancy discrimination. In case you missed it (and given the numbers of folks tweeting along, I’m going to guess that you did), below is a neat little summary of the hour-long tweetfest. The rights of pregnant workers is an important issue that will only get more important and dual-income families and single moms are the rule and not the exception.

Thanks to Thompson HR for the invitation and for hosting. I enjoyed my hour of tweeting (even if my wrists and fingers did not).

Tuesday, November 11, 2014

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.

Thursday, August 7, 2014

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.

Wednesday, August 6, 2014

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]

Monday, August 4, 2014

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.

Tuesday, July 15, 2014

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:
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.

Wednesday, March 19, 2014

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.