Why it matters: The new laws in New York City and Maryland illustrate the growing number of jurisdictions enacting expanded protections for pregnant employees beyond federal laws such as the Americans with Disabilities Act and the Pregnancy Discrimination Act. As for California, employers should familiarize themselves with the Harris decision and its implications. The opinion heightens the standard in FEHA cases, requiring plaintiffs to establish that pregnancy was “a substantial motivating factor” behind the adverse employment action and not simply “a motivating factor.” However, the decision also requires employers to affirmatively plead a mixed-motive defense in the answer to the plaintiff’s complaint or waive it as a defense at trial.

Detailed Discussion

Pregnant employees have made headlines recently, with greater protections for pregnant workers in Maryland and New York City, while the California Court of Appeal adopted a heightened standard for plaintiffs in pregnancy discrimination suits.

In New York City, a new law requiring city employers with four or more employees to provide reasonable accommodations for pregnant women was unanimously passed by the City Council and signed into law by Mayor Michael Bloomberg on October 2.

Pregnant women and those suffering medical conditions related to pregnancy and childbirth are entitled to “reasonable accommodations” under the law, which listed examples like “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.”

Employers that can establish that such accommodations would result in an “undue hardship” to their business may avoid the requirements. Employees who believe they have been discriminated against can file a complaint with the New York City Commission on Human Rights or file suit against their employer.

Pursuant to the new law, set to take effect January 30, 2014, employers must also provide notice to employees about their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.

Employers in Maryland are already facing similar requirements under a new law that took effect October 1. There, the Reasonable Accommodations for Disabilities Due to Pregnancy Law requires employers with at least 15 employees to provide accommodations to an employee with a disability caused by or contributed by pregnancy, unless the accommodation would impose an undue hardship on business.

Possible accommodations employers should consider, according to the legislation: changing job duties or work hours, switching work areas, transfer to a less hazardous position, or providing leave. Employers may request certification from an employee’s healthcare provider.

However, on the other end of the spectrum, a California Court of Appeal recently reversed a jury verdict in favor of an employee alleging pregnancy discrimination, holding that plaintiffs must establish that pregnancy was a “substantial motivating reason” behind an adverse employment action – not just “a motivating reason.”

The decision is in accordance with the California Supreme Court’s opinion in Harris v. City of Santa Monica earlier this year, which established that the proper standard of causation in a Fair Employment and Housing Act discrimination or retaliation claim is “a substantial motivating reason.” 

The case involved Lorena Alamo, who was terminated by Practice Management Information Corporation the day she returned from a maternity-related leave of absence. When she filed suit, PMIC said the action was based upon performance problems and insubordination issues. But a jury decided that Alamo’s pregnancy was “a motivating reason” for her termination and awarded $10,000.

The verdict was originally upheld on appeal. But in light of Harris, the panel subsequently reversed and remanded for a new trial, rejecting Alamo’s argument that a jury in an employment discrimination case would not draw any meaningful distinction between the two standards.

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision,” the court wrote, quoting from Harris.

Importantly for employers, the court also held that PMIC was not entitled to an instruction on a “mixed-motive” defense on remand. A mixed-motive defense is available under FEHA as a limitation on remedies and not a complete defense to liability, the court noted. But PMIC failed to plead the defense in its answer to Alamo’s complaint and never asserted as an affirmative defense that it did not discriminate or retaliate against her, that it acted lawfully in terminating her employment, or that it had legitimate reasons for any adverse employment decision.

PMIC therefore waived the mixed-motive defense, the panel concluded.

To read New York City’s new law, click here

To read Maryland’s new law, click here

To read the decision in Alamo v. Practice Management Information Corp., click here.