True or False: An employer is free to fire a pregnant employee once she has exhausted all her leave under the Family and Medical Leave Act.
The most accurate answer: It depends.
The FMLA requires covered employers to provide up to 12 weeks of job-protected leave for the birth of a child.
On the other hand, the Americans with Disabilities Act Amendments Act increased employers’ obligation to accommodate any worker with an impairment that substantially limits one or more life activities. “Leave,” says U.S. Equal Employment Opportunity Commission Chair Jacqueline A. Berrien, “is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.”
Recently EEOC officials identified pregnancy discrimination under the ADAAA as an “emerging issue” and are making enforcement of job protections for pregnant women a priority. So we decided to take a closer look at how the rules apply.
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Employers become vulnerable to a discrimination claim by treating pregnant workers differently than other, similarly situated employees. The Pregnancy Discrimination Act prohibits such disparate treatment.
For example, an employer that allows an employee with a temporary back injury to take disability leave or leave without pay, or to do less strenuous work, is required under the PDA to allow the same for an employee with temporary lifting restrictions due to pregnancy.
Likewise, the PDA prohibits an employer from requiring a pregnant worker to take leave if the same is not required of another worker with a similar condition. The law applies regardless of whether the mother-to-be has a genuine impairment — for instance if her doctor orders bed rest because of a serious pregnancy-related condition like preeclampsia (a form of high-blood pressure) — or if the employer simply believes a woman is no longer up to the job because she is pregnant.
“I think the thing employers should do is not make judgments that aren’t informed judgments about a person’s ability to work during pregnancy,” said Christopher J. Kuczynski, an EEOC assistant legal counsel, who spoke by phone with HR Compliance Expert.
In one recent case, a Jackson, Miss. restaurant agreed to pay a server $20,000 and provide other relieve to settle a suit in which the EEOC had charged that the worker was removed from the weekly schedule and fired because of her pregnancy.
According to the claim, the restaurant terminated the mother-to-be without warning and without prior disciplinary action, telling her when it took her off the weekly schedule, “The baby is taking its toll on you.” The server, who was four months pregnant with her first child, had not cut back on her shifts and was under no medical or working restrictions when she was fired.
Accommodation obligation
Employers also can run into problems by failing to accommodate an employee with a serious pregnancy-related impairment, according to Kuczynski.
Pregnancy is not a disability. But under the ADAAA’s broadened definition of disability, some pregnancy-related conditions that would not have triggered an employer’s obligation to provide an accommodation before 2008 now do.
The number of pregnancy-related discrimination complaints made with the EEOC is growing, despite the broadened protections. Complaints lodged with the EEOC alleging PDA violations have increased by more than 35 percent over the past 10 years. There are no statistics for pregnancy-related disability claims, but EEOC’s caseload in this area is expanding.
In an ongoing case filed last fall, the EEOC accused a Laredo, Tex., oil and gas testing firm of illegally firing a worker who requested leave for a pregnancy-related complication. The company bolstered the discrimination charge with a letter to the Texas Workforce Commission mentioning that it hired the worker believing she was unable to conceive. When the employee became pregnant and was absent for several days, the company wrote, “thinking she would have to stay home for some time, she was replaced after five days off or more.”
The EEOC also is suing a Las Vegas government services contractor that allegedly repeatedly denied the requests of an administrative worker who wanted to work closer to the restroom because she suffered from severe nausea and vomiting arising from her high-risk pregnancy. The worker already had fallen at least twice while going down two sets of steep stairs to reach the restroom, according to the EEOC.
In another pending case, EEOC is suing a Houston debt collection agency on behalf of an account representative who allegedly was not allowed to return to her job after she had taken less than three months of maternity leave. Although her job had been held open for her, company officials changed their mind upon learning the worker planned to express milk, according to the suit. The EEOC contends that the mother’s pregnancy and childbirth, and specifically her status as a lactating female, motivated the employer’s decision to fire her.
Compliance challenge
Employers can unwittingly set themselves up for a disability discrimination lawsuit in various ways, warns Michael Barnsback a partner with LeClairRyan in Alexandria, Va. who advises companies on pregnancy-related claims.
Automatically denying additional leave to pregnant workers who run out of FMLA leave is a common pitfall, he said. “HR is focused on FMLA issues. They don’t think about the ADA.”
A California shipping company learned this lesson the hard way earlier this year when a state appeals court reversed a lower court’s ruling in Sanchez v. Swissport, Inc., and concluded that a pregnant employee who was prescribed bed rest for her high-risk pregnancy was illegally denied an accommodation when her employer fired her after she used up all her leave.
The Sanchez ruling is based on California law. But the decision is a reminder of the risks faced by any employer that refuses to accommodate pregnant worker with a disabling condition. The court held that Sanchez was entitled to the protections afforded any other disabled employee: a reasonable accommodation that does not impose an undue hardship on her employer.
Employers also must recognize that, because of the ADAAA’s broadened definition of disability, an increasing number of pregnant workers may qualify for accommodations — simply because a far broader spectrum of pregnancy-related impairments may now qualify as disabilities. Among them:
- pregnancy-related sciatica, which could limit how much a mother-to-be can lift;
- pregnancy-related carpal tunnel syndrome, which can cause pain and numbness in the hand, wrist and arm and limit fine motor tasks;
- gestational diabetes, requiring a woman to modify her break schedule so she can eat every few hours to control blood sugar levels; and
- preeclampsia, which might require bed rest.
Congress deliberately made it difficult for employers to prove that an accommodation, including extended leave, is unreasonable or an undue burden. A savvy employer will take into account the fact that an increased number of pregnant workers may qualify for extended leave as an accommodation and take steps to guard against a staffing shortfall. Some employers line up contingent workers and cross-train staff to ensure they can maintain productivity in the event workers take extended leave for any reason.
Timing isn’t everything
The ADAAA stipulates that an impairment lasting fewer than six months can be substantially limiting. Still, many employers stumble when it comes to applying this rule to pregnancy-related impairments.
“Employers are very aware that pregnancy is a protected status,” Christine Walters, a human resource and employment law consultant said. “But they are learning that that these short term conditions can be a disability.”
A well-drafted position description can help an employer make informed decisions about whether an accommodation is reasonable and may help fend off discrimination claims, says Walters.
Employers also should ask an employee’s doctor to review the position description to determine if a disabled employee is up to the job.
“Let the doctor tell you if the employee is able to work,” she said. “We’re not the medical experts.”
She also recommends that employers look at a various accommodations before assuming a worker temporarily disabled during pregnancy is unable to do her job. Technology, and the ability to work from home, has broadened the options for many people with disabilities, including pregnant women.
“Don’t assume that just because an employee is limited to bed rest she can’t do any work at all,” she said. “Let the physician make the decision.”
Related Thompson Resources
Leave and Disability Coordination
Guide to Preventing Discrimination in the Workplace