Category : Pregnancy Discrimination

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A “Bump” In the Road: Pregnancy and Accommodations at Work

While many women have easy-going, uneventful pregnancies, many others develop medical issues while their body changes during pregnancy. These issues can be as common and harmless as frequent bathroom use to more serious, like preeclampsia. While such issues can be hard enough to deal with in the comforts of home, such inconveniences can be far more intrusive if you are dealing with them at work. Pregnancy discrimination is a growing concern for many women in the U.S. as was made clear when the EEOC issued their revised Enforcement Guidance for Pregnancy Discrimination and Related Issues on June 25, 2015. The EEOC issued this on the heels of the Supreme Court’s decision in Young v. UPS, which held that a company cannot treat pregnant employees any different than it does other temporarily disabled employees.

To be clear, pregnancy on its own will likely not qualify a woman for an accommodation, but any impairments associated therewith can be considered. For example, if your doctor advises you that you can no longer lift more than 15lbs at work, you should seek an accommodation. Such an accommodation would likely be offered to other employees who, for example, had lifting restrictions due to an injury on the job. For this reason, an employer must do for pregnant women what it would do for other workers who have restrictions due to issues other than pregnancy.

Using this as a guide, women should not be afraid to discuss accommodations with their employer. Communication is key. Once a pregnant woman discusses any issues she may be having with her pregnancy with her employer, the employer and employee should work together to find out what is a fair compromise. For example, if the pregnant woman finds that her work performance would increase if she were closer to the bathroom during her pregnancy, perhaps the employer could move her desk closer to the bathroom on a temporary basis. According to the ADA Amendments Act of 2008 (“ADAAA”), an employer is obligated to provide a “reasonable” accommodation to employees who qualify under the Act.  As one can guess, the interpretation of what is “reasonable” is usually a point of contention.

The essential take-away from recent trends is that employers and employees should work together on what work modifications would help the employee maintain productivity and not intrude on the business goals of the employer. If the two sides can strike a balance, pregnant employees and their employers will benefit greatly.

For additional information, check out the National Women’s Law Center.

Florida employees/employers: if you have questions about the above, contact our offices for a free consultation.

Outside of Florida: seek a qualified employment attorney in your area.

Disclaimer: This post should not be construed as legal advice. If you believe you have a legal issue, seek a qualified attorney in your state. Nothing contained herein is meant to create an attorney-client relationship, and any posts, comments, or responses are not confidential and are not legal advice.

SCOTUS October Term: An Overview of Employment-Related Cases before the Supreme Court

The October Term for the Supreme Court of the United States (SCOTUS) is underway. This term, the Justices have been petitioned to review cases involving interpretations of the McDonnell Douglas framework, the Pregnancy Discrimination Act, 42 U.S.C. section 2000e(k), religious accommodations, and the EEOC’s policies and procedures.

To set the stage for this overview, we must first understand how SCOTUS determines what cases it will hear, and which cases it will not. SCOTUS has original and appellate jurisdiction; and most of the cases it hears are those brought up on appeal. A party to litigation may petition the Court to hear a case through a writ of certiorari. Such writs are filed after the case has been heard by either (1) the highest court within a state, i.e., the Florida Supreme Court (if that court decided a case which involved a Constitutional issue); or (2) from a Federal Court of Appeals, i.e., the 11th Circuit. You can learn more about the procedures of the Court here.

So, how does the panel of nine justices determine 100-150 cases it will hear arguments on out of the 7,000+ writs filed with it? Since this is the highest court in the United States, it may be no surprise that one of the largest considerations of the Court is whether the case has importance or significance. Let’s take a look back at last term. The Court decided Burwell v. Hobby Lobby which held that a privately-held corporation can have religious beliefs and; therefore, can decide not to offer coverage for contraception to its employees based on those beliefs. Contraception, religion, the Affordable Care Act, and corporate governance all were–and are–current issues, so it made sense for SCOTUS to chime in. In addition to whether an issue is of importance, the Justices are also more likely to decide a case which involves conflict between circuits. There are eleven circuits in the U.S. You can see a map here. There are plenty of times where one circuit court interprets a law one way, while another circuit with an entirely different set of constituents interprets the very same law an entirely different way. Like siblings fighting, sometimes the parent (SCOTUS) needs to get involved and have the final say.

Now that we have a general idea of what piques the Justices’ interest, here let’s dive in to the employment law cases SCOTUS will be deciding this term.

Young v. UPS, Inc.

Peggy Young (Petitioner) worked at UPS as an air driver, driving packages marked “Air” to the airport. Generally, these packages were small letters or things that were not heavy since the cost-per-pound for air delivery is higher than ground delivery. In 2006, Young became pregnant and brought in a note from her midwife requesting that Young be restricted to lifting no more than twenty pounds. Given this restriction, Young asked to either continue her regular job or be assigned to light duty. UPS told Young that it offered light duty, but only for those people who either (a) had on-the-job injuries, (b) needed an accommodation under the American’s with Disabilities Act, or (c) had lost their Department of Transportation certification. Since Young did not fit into any of these three categories, UPS did not accommodate her and required her to take an unpaid leave of absence; during which she lost medical coverage. Under the PDA, an employer must treat pregnant employees “the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. section 2000e(k). The question before the Court is whether UPS treated Young in the same manner as those employees who had similar restrictions and were not pregnant. As Young argues, she was not treated the same as non-pregnant employees with the same or similar restrictions because she was refused light duty. UPS argues, on the other hand, that their policy was “pregnancy-blind” and therefore cannot be construed as discriminatory. The district court sided with UPS, and the Fourth Circuit Court of Appeals affirmed.  Arguments on this case are scheduled for December 3, 2014 and can be heard here.

EEOC v. Abercrombie & Fitch

Samantha Elauf, a Muslim, applied for a position with Abercrombie & Fitch Kids. Elauf came to her interview with A&F wearing a hijab (headscarf). The fact that she was wearing a hijab was not raised by Elauf or the interviewer. However, the interviewer assumed that Elauf wore the headscarf for religious reasons. Elauf was ultimately not hired because the District Manager determined that the wearing of the hijab violated A&F’s “Look Policy,” despite the fact that Elauf scored well on all other aspects of the interview. The district court granted summary judgment to the EEOC. In their ruling, the district court noted that the EEOC fulfilled their burden under the McDonnell-Douglas burden-shifting framework (infra) and that A&F failed to rebut the elements of the EEOC’s case. The court acknowledged that there was an issue of whether a person, when claiming religious discrimination, needs to explicitly state that s/he requires an accommodation (in this case, for religious purposes). The district court rejected that notion, and thus held that no explicit notice of an accommodation is required. The Tenth Circuit Court of Appeals, however, disagreed and reversed the district court’s ruling; stating that A&F had not received sufficient notice of the need for a religious accommodation. The question presented to the Supreme Court is whether an employer can be liable under Title VII for refusing to hire an employee based on a religious observance and practice only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant/employee. Arguments are not yet set on this case, but you can check here for updates.

Mach Mining v. EEOC

In this case, SCOTUS must determine whether the EEOC is allowed to bring a lawsuit against an employer without first attempting to resolve the issue(s) through conciliation (mediation). As a background, allegations of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq., must be brought before the EEOC before a complainant can file a lawsuit in an appropriate court. The EEOC is then required to review the charge, investigate, and attempt to conciliate or mediate the issues contained therein. 42 U.S.C. section 2000e-5(b). In this case, the EEOC presented the employer, Mach Mining, with a verbal conciliation demand, but later decided that the conciliation process had failed and that further conciliation efforts would be futile. The EEOC then filed a lawsuit on behalf of the charging party. Mach Mining raised an affirmative defense of failure to conciliate. The EEOC then moved the district court to grant summary judgment on that affirmative defense; which the district court denied, saying that all circuits agree that the requirement of conciliation is subject to some judicial review (meaning that the conciliation efforts of the EEOC can be evaluated by the courts). The Seventh Circuit Court of Appeals ruled, however, that the EEOC’s conciliation process is not subject to review by the courts; a decision which deviates from the holdings of all the other circuits. As it stands now, the Second, Fifth, and Eleventh Circuits all agree that the conciliation process is subject to a three-part inquiry; the Fourth, Sixth, and Tenth Circuits agree that the EEOC’s conciliation efforts must meet a minimum level of good faith; and the Seventh Circuit stands alone. This huge split between the circuits begs for SCOTUS intervention. Arguments have not been set on this matter, but you can check here for updates.

So, what does this mean for you, employers and employees alike? It means that the land of employment law is ever-changing and the issues related to employment matters are significant. Because of this, employers must keep up on the rulings of courts in their jurisdiction, as well as the Supreme Court, to make sure that they are abiding by the current interpretations of the laws and protecting themselves against litigation. Employees should also keep up on the employment laws so that they can seek out a qualified attorney in their state if they feel their employer has acted illegally. As with most things, knowledge is power.

Note: The Supreme Court may also hear arguments on Kalamazoo Cnty. Rd. Comm’n v. Deleon, a case which asks whether an employee’s request for a transfer can be considered an adverse employment action if the new position is less desirable than the previous position. Petition for writ of certiorari is currently pending.

Disclaimer: This post should not be construed as legal advice. If you believe you have a legal issue, seek a qualified attorney in your state. Nothing contained herein is meant to create an attorney-client relationship, and any posts, comments, or responses are not confidential and are not legal advice.