Before your organization doesn't hire, promote, or accommodate your next pregnant employee—beware—because pregnancy-related lawsuits are increasing and you could be putting yourself at risk.
According to the Equal Employment Opportunity Commission (EEOC), pregnancy discrimination claims have been steadily rising over the past 15 years. In addition, the EEOC has said that one of its six national priorities is to address issues involving pregnancy-related limitations. In light of these trends, here are 4 essential guidelines employers must follow when managing pregnancy and maternity in the workplace.
1. Don't let pregnancy affect employment decisions.
If you are considering not hiring, promoting, or providing certain job assignments to a pregnant employee or job candidate, or someone you think is trying to get pregnant, watch your steps closely.
Pregnancy is a protected status and no different than race or age. The Pregnancy Discrimination Act (PDA) prohibits employers from discriminating against an employee or prospective employee on the basis of pregnancy for hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
But this doesn’t mean that pregnant employees are “off limits” if they are underperforming or engaging in misconduct. Take the same steps you would with any other employee. Counsel them, document the conversation in writing, warn/discipline them if the issue escalates, and provide support if necessary. Be aware, though, that sudden performance or behavioral problems while pregnant may signal a need to accommodate.
2. Make sure you accommodate pregnancy-related impairments.
While pregnancy is not considered a disability under the Americans with Disabilities Act (ADA), "pregnancy-related impairments” may be considered disabilities if they limit a major life activity for an employee.
If a woman is temporarily unable to perform her job duties as a result of a condition related to pregnancy or childbirth, employers must treat her equivalently—as they would any other employee who is temporarily disabled—and provide accommodations such as:
- Light duty
- Alternative assignments
- Modified tasks
- Disability leave
- Unpaid leave
Often, pregnancy-related accommodations are low cost or no cost to employers. Also, sometimes, a pregnancy impairment may qualify as a "serious health condition" and need to be covered under the Family Medical Leave Act (FMLA).
If pregnant workers, however, do not have any pregnancy impairments, treat their absences (such as for doctor's appointments) as you would absences for other reasons.
Unfortunately, not accommodating pregnant women has become a trend – and one that should be avoided by your organization. A 2013 report released by the National Women’s Law Center and A Better Balance reports that pregnant employees are facing discrimination in the workplace, including refusal by their employers to make basic accommodations such as additional restroom breaks, honoring lifting restrictions, being allowed to sit versus stand to work, and allowing them to consume food or drink on the job. This trend is especially prevalent among women in lower income jobs or jobs traditionally held by males.
3. Be aware of women's right to lactate in the workplace.
Nursing mothers are able to express milk in the workplace. The Affordable Care Act amended the Fair Labor Standards Act (FLSA) and now requires employers to provide reasonable breaks to mothers to lactate and a private space other than a restroom. This time may be unpaid and does not apply to employers with fewer than 50 employees if its requirements impose undue hardship.
A 2013 decision by the 5th U.S. Circuit Court of Appeals shows that an employer who terminates a woman for lactating or wanting to lactate at work violates Title VII of the Civil Rights Act and the Pregnancy Discrimination Act (PDA).
In EEOC v. Houston Funding II Limited, the plaintiff alleged sex discrimination, arguing that she was terminated after she asked her employer if she could have space to lactate after returning to work from maternity leave. Her employer rejected her request and suggested that she remain at home. The plaintiff did not return to work and her employer terminated her, claiming job abandonment.
Although the district court sided with the employer and found that her termination was not sex discrimination, the 5th Circuit court of appeals disagreed with its decision and concluded that lactation is a medical condition related to pregnancy and that termination of an employee for lactating or because they want to lactate/express breast milk in the workplace, violates Title VII of the Civil Rights Act and Pregnancy Discrimination Act. The 5th Circuit court cited that it constituted sex discrimination because “lactation is a physiological condition distinct to women who have undergone a pregnancy.”
The court’s decision should send a clear message to employers that they must allow female employees to lactate in the workplace. Here are some ways that you can support this:
- Provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth (typically 2-3 times during an 8 hour shift)
- Provide privacy in your facility (a separate lactation room or office)
- Make sure there is a system regarding how to handle reservations, scheduling, storing of milk during work hours, and cleaning/maintenance
- Have a policy relative to lactation equipment, specifically who is responsible for this equipment (employer or employee)
4. Manage their leave and return to work effectively
A new parent (male or female) may take up to 12 weeks of leave under FMLA for the birth of a new child, if their employer is covered under the law and they are eligible. Additionally, be aware that under Ohio law (which applies to organizations with at least four employees), employers must provide a "reasonable amount of time" which the Ohio Civil Rights Act's statements suggest a minimum of 12 weeks of unpaid leave for "pregnancy, childbirth, and related medical conditions." At the end of the leave, employees must be reinstated to their position or a position of similar status and pay.
Similar to accommodations, you need to treat leave for pregnancy the same as you would any other sickness or disability. For example, if you require that vacation or PTO benefits are used before leave takes effect in cases of medical conditions and other disabilities, this requirement must be imposed on everyone—including pregnant workers.
Also, it's common for employers to make assumptions about whether or not pregnant employees will be returning to work, but refrain from doing so and don't institute rules that prohibit pregnant employees or new mothers from working when they are able to perform their job.
Instead, remind pregnant workers that it's their responsibility to inform you of any changes in their leave plans, expected return-to-work date, and employment status; discuss options that are available if the employee requests leave, a change in employment status (such as part-time) and hours; and have a contingency plan. You need to keep their job open in the same way that you hold jobs for employees on FMLA and other disability or sick leaves.
Pregnancy and maternity present challenges for employers. Recognize that you do not need to give pregnant employees preferential treatment, but do need to follow these guidelines, be extremely consistent in your practices, and most importantly—not make any assumptions.
View ERC's Parental Leave Policies and Practices Survey Results
This report summarizes the results of ERC’s survey of organizations in Northeast Ohio on practices related to parental leave policies & practices.