No Pregnant Pauses Here: Workplace Laws Protecting Expectant Mothers Becoming the Norm across the United States
In Young v. United Parcel Service, Inc. (2015), the Supreme Court held that employers covered by Title VII are to treat pregnant employees the same as other employees who are similarly situated in their ability to work. In the 13-plus months since the Supreme Court’s ruling, we have seen continued momentum building to provide more robust legal protections for pregnant women in the workplace.
For example, nearly all the states and the District of Columbia have laws prohibiting discrimination against employees on the basis of pregnancy. Many states, and a growing number of cities also, have some form of a pregnancy accommodation law, requiring employers to provide pregnant employees (or those recovering from childbirth) with reasonable accommodations and, in some cases, prohibiting them from requiring a pregnant employee to take leave. Often, the employer's obligation to accommodate is not limited to circumstances in which the need for an accommodation arises out of a "disability" caused by pregnancy. And many of these laws prohibit an employer from mandating that an employee take leave while pregnant or accept the employer's preferred accommodation option. Almost all require that an employer post specific notices outlining employee rights under the laws, and some require the inclusion of related language in the employer's handbook.
As previously discussed in our March 2015 webcast,1 "Illinois Pregnancy Accommodation Law," Illinois introduced its own pregnancy accommodation law—which requires, among other things, accommodation of “common conditions" related to pregnancy and childbirth. In November 2015, the Illinois Department of Human Rights issued its own rules on the topic, which outline the agency's expectations concerning the interactive process and related employer and employee duties, among other things, including when an employer may request medical information regarding the requested accommodation. In addition, in January 2016, the New York State Human Rights Law was amended to confirm that employers must accommodate as a temporary disability the "pregnancy-related conditions" of an employee or applicant, including those that may not constitute a "disability" under that law but that nonetheless inhibit a normal bodily function or that are demonstrable by medically accepted clinical or laboratory diagnostic techniques. And, on May 6, 2016, the New York City Commission on Human Rights issued enforcement guidance on the New York City Human Rights Law's protections against discrimination and for reasonable accommodations based on pregnancy, childbirth or related medical conditions. California, meanwhile, has required accommodation for pregnancy-related medical conditions for years, separate and apart from that state's distinct pregnancy disability leave requirement.
Employers with personnel in just one or in multiple jurisdictions are encouraged not only to review their anti-discrimination and anti-harassment policies, but also to ensure that their reasonable accommodation practices take into account, where appropriate, the unique requirements of the states and cities in which their employees work. They should also be mindful of the EEOC's pregnancy discrimination–related guidelines, which issued in June of 2015 and touch on a variety of topics—including the types of parental leave policies the EEOC considers acceptable, and those that it does not. Employers should also consider whether training their human resources and management personnel is appropriate on a company-wide basis, and whether separate training may be called for where a specific jurisdiction requires "more" in terms of accommodating pregnancies.