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Articles Posted in Pregnancy Discrimination

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The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Supreme CourtIn the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

Both the District Court and the Court of Appeals dismissed Ms. Young’s case, finding it was not relevant that UPS provided the same accommodation to its disabled employees. It reasoned that those employees were not similar enough to Ms. Young to provide a valid comparison. On appeal, the Fourth Circuit affirmed.

However, in Young v. United States, the Supreme Court disagreed. It held that an employee can establish an initial case of a failure to accommodate pregnancy under the PDA by showing (1) she is pregnant; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated other employees who are “similar in their ability or inability to work.” If the employee does so, then the employer has to identify a non-discriminatory reason for failing to accommodate the employee. This cannot simply be the fact that it is more expensive or less convenient to accommodate pregnant women.

Assuming the employer identifies a non-discriminatory reason for failing to accommodate the pregnant worker then the employee can show that the employer’s justification for failing to accommodate her is a pretext (or excuse) for pregnancy discrimination. The Supreme Court indicated that a worker can establish this by showing the employer’s justification for failing to accommodate her is not “sufficiently strong” to justify a “significant burden on pregnant workers” imposed by its policies. For example, an employee show the employer accommodates a significant percentage of non-pregnant employees, but does not accommodate a significant percentage of its pregnant workers.

Based on its ruling, the Supreme Court sent the case back to the Fourth Circuit to determine whether Ms. Young has presented enough evidence to support her claim.

While Young may be a groundbreaking case in many parts of the county, as I previously discussed, both New Jersey (New Jersey Passes Law Prohibiting Pregnancy Discrimination) and New York City (New Rights for Pregnant Employees in NYC) already require even more generous accommodations to women who are pregnant.

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A few weeks ago, the United States Equal Opportunity Commission (EEOC) issued new enforcement guidelines regarding the federal Pregnancy Discrimination Act (PDA) and related claims under the Americans with Disabilities Act (ADA).

The PDA prohibits most employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. It also requires them to treat women based on their ability or inability to work, rather than based on pregnancy, childbirth, or related medical conditions. The ADA prohibits employers from discriminating against employees because they have a disability, including a pregnancy-related disability. It also requires employers to provide reasonable accommodations to permit disabled employees to perform the essential functions of their jobs.

Casual pregnant businesswoman smiling at computer at her desk inThe EEOC’s guidelines make it clear employers cannot discriminate against employees based on a current or past pregnancy. It notes employees are more likely to prove discrimination claims based on past pregnancies when the employer takes an adverse action (such as termination or demotion) relatively quickly after the employee gave birth. For instance, there can be a strong inference of pregnancy discrimination when an employer takes a negative action while the employee is still on a maternity leave, or right after she returns from one.

The EEOC further explains that the PDA prohibits employers from discriminating against employees because they intended to get pregnant. Accordingly, employers should not ask job candidates or employees whether they intend to become pregnant. The EEOC considers such questions evidence of discrimination if the employer subsequently takes a negative job action against the individual.

The guidance notes that although it would be impossible for an employer to discriminate against an employee based pregnancy unless it knows the employee is pregnant, a company can learn an employee is pregnant in a variety of ways including from the employee herself, through rumors or office gossip, or because the employee is visibly pregnant.

In addition, the EEOC states that employers cannot act based on assumptions and stereotypes about pregnant women, such as assuming they will have attendance problems or will not return to work after they give birth. Likewise, as long as an employee can perform her job an employer cannot force her to take a leave of absence because she is pregnant. This is true even if the employer believes it is acting in the employee’s best interests.

The EEOC explains that employers have to treat women who are pregnant, have recently given birth, or have a related medical condition the same way as they treat other employees of comparable ability (or inability) to perform their jobs. That applies with respect to providing modified or light duty work, paid or unpaid time off, and temporary reassignments. To the extent a pregnant employee requests something the employer has provided to a disabled employee as a reasonable accommodation, the employer must treat the pregnant employee equally, but it can deny the accommodation if doing so would impose an “undue hardship.”

The guidelines explain it can be unlawful for an employer to discriminate against an employee because she is lactating or breastfeeding since those are pregnancy-related medical conditions specific to women. For instance, an employer must provide the same rights to an employee who needs to lactate as it would provide to a disabled employee. In addition, the Affordable Care Act requires employers to provide hourly employees who are breastfeeding break time and a private place where they can express milk.

The EEOC also indicates that federal law prohibits discrimination against a female employee because she had an abortion, chose not to have an abortion, or is considering having an abortion. Likewise, they indicate federal law prohibits employers from making employment decision based on whether or not a female employee uses contraceptives.

Moreover, the guidelines note that discrimination against an employee because she is a caregiver does not violate the PDA. But as I have previously discussed, the EEOC previously explained when federal law prohibits Discrimination Against Caregivers.

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Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

Thumbnail image for Thumbnail image for Thumbnail image for New Jersey Passes Law Prohibiting Pregnancy Discrimination.jpgThe new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

This amendment to the LAD also requires employers to provide reasonable accommodations to pregnant employees based on the advice of their physician, irrespective of whether the employee is disabled. It lists examples of potential accommodations as including “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” It also makes it clear that companies must offer their pregnant employees at least as much paid and unpaid time off as it provides to comparable employees who are not pregnant.

However, the law makes it clear that employers do not have to provide an accommodation if it can show it would impose an undue hardship on its business. It lists factors to determine whether a particular accommodation would impose an undue hardship as including (1) the overall size of the employer’s business including the number of employees, the number and type of facilities, and the size of budget; (2) the nature of the employer’s operations, including the composition and structure of its workforce; (3) the nature and cost of the accommodation; and (4) the extent to which the company would need to waive an essential job requirement to provide the accommodation. This final consideration seems to imply that, at least under certain circumstances an employer might be required to waive an essential job requirement to accommodate a pregnant employee. If so, this would be significant since employers are not required to waive essential job functions, even temporarily, when providing reasonable accommodations for an employee’s disability or religious belief.

Since the LAD already included a broad anti-retaliation provision, it now prohibits employers from retaliating against employees who complain about pregnancy discrimination in the workplace. In addition, it includes a new provision forbidding employers for penalizing an employee for requesting or using an accommodation for a pregnancy-related condition.

The amendment also includes a provision that makes it unlawful for individuals and companies to refuse to enter into or renew contracts or otherwise do business with someone because she is pregnant. As a result, in addition to protecting employees it also protects independent contractors.
The new law and all of its requirements went into effect on January 16, 2014. You can read the full text online.

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Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not “smoking gun” evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio’s pregnancy as an important negative factor in making employment decisions about her. In other words, it was evidence of pregnancy discrimination.

bigstock-Muslim-arabic-muslim-business--29490224.jpgThe judge also found Merck’s justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation “barely more than no reason at all,” since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio’s claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio’s retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

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Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC’s Press Release recognizes that “employers should not make decisions based on stereotypes and presumptions about the competence” of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and “most pregnant women want and need to work,” pregnancy discrimination continues to be a major problem in the workplace.

Pregnant Business Woman.jpgThe EEOC indicates that women make up 47% of today’s workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.”

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC’s Press Release promises to “vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

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Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

Pregnancy Discrimination 2.jpgIn her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg’s expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.

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In an important employment law decision, on June 8, 2011, New Jersey’s Appellate Division ruled that an employee can enforce her employer’s promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee’s job application which stated that she is an employee-at-will who can be fired “at any time, with or without grounds, just cause or reason and without giving prior notice.”

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

Pregnancy Discrimination.jpgHowever, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth’s maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company’s Code of Business Ethics and Ms. Lapidoth’s employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth’s position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.

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Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

The law applies to all employers, but companies with fewer than 50 employees are not subject to the requirement if it would be an undue hardship. This means that the break time causes the company significant difficulty or expense, compared to the size, financial resources, nature, or structure of the company’s business.

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On May 30, 2008, in the case of Doe v. C.A.R.S. Protection Plus, Inc, the United States Court of Appeals for the Third Circuit ruled that Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e, et seq. (“Title VII”) protects a woman from discrimination because she had an abortion. The Third Circuit is the federal appellate court that includes the state of New Jersey, as well as Pennsylvania, Delaware, and the Virgin Islands.

Title VII makes it illegal for employers with 15 or more employees to discriminate against an employee because of his or her race, color, religion, sex, or national origin. The Pregnancy Discrimination Act of 2000 amended Title VII to clarify that the prohibition of discrimination because of sex includes discrimination because of “pregnancy, childbirth, or related medical conditions.” In C.A.R.S., the Court concluded that since an abortion is a pregnancy-related medical condition, it is illegal to fire or otherwise discriminate against an employee because she has had an abortion. This was the first time an appellate court covering the state of New Jersey had considered whether it is illegal to fire an employee because she had an abortion.

In reaching the conclusion that the Pregnancy Discrimination Act prohibits employers from discriminating against individuals who have had an abortion, the Third Circuit relied on the 1996 decision of the Sixth Circuit Court of Appeals, Turic v. Holland Hospitality, Inc., which reached the same conclusion. The Court also gave significant consideration to a regulation of the Equal Employment Opportunity Commission (“EEOC”) which specifically states that a woman is protected from being fired because she is pregnant or has had an abortion. It also considered the legislative history of the Pregnancy Discrimination Act, which expressly recognizes that no employer may, for example, “fire or refuse to hire a woman simply because she has exercised her right to have an abortion.”

In C.A.R.S., the employee’s lawyer also argued that, since the Pregnancy Discrimination Act makes it illegal to retaliate against an employee who opposes a practice the Pregnancy Discrimination Act prohibits, it also prohibits discrimination an employee who “contemplates having an abortion, or who supports the rights of women who do so.” However, the Court did not find it necessary to decide whether the law actually extends that far, leaving that issue to be decided in a future case.

Jonathan I. Nirenberg is an employment lawyer and a civil rights attorney who represents employees in New York and New Jersey.

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