Thirty-five years ago, Congress passed the Pregnancy Discrimination Act (“PDA”), which outlawed discrimination against pregnant workers. Since then, legislators and employers have taken steps to make the workplace more accessible for pregnant women. Several state and local legislatures have enacted laws requiring employers to provide workplace accommodations to pregnant employees. Most recently, New York City and Philadelphia enacted laws requiring employers to provide a reasonable accommodation to pregnant women and those who suffer conditions related to pregnancy and childbirth.
The Makings Of The Laws
Existing Legislation: Several courts have interpreted the 1978 PDA narrowly, permitting employers to deny accommodations to pregnant women. In response to the PDA’s shortcomings, Congress expanded the Americans with Disabilities Act in 2008, interpreting a disability to encompass pregnancy-related impairments. Nine states including Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, New Jersey, and Texas also adopted laws attempting to reduce pregnancy discrimination. New York City and Philadelphia are among the first cities to pass similar legislation.
Philadelphia’s Fair Practice Ordinance & New York City’s Pregnant Workers Fairness Act
New York City and Philadelphia enacted laws requiring employers to provide a reasonable accommodation to pregnant women and those who suffer conditions related to pregnancy and childbirth. Employers in these cities now have marching orders on how to prevent pregnancy discrimination in the workplace. Here is a snapshot of the new laws:
- Who The Laws Apply To: Philadelphia’s pregnancy discrimination law applies to all employers, whereas New York City’s law applies to all businesses with four or more employees (including independent contractors).
- What Employers Should Do: Employers in both cities must provide notice of the law’s requirements to new employees at the commencement of employment. Employers must also circulate notice of the law’s requirements to existing employees. The notice must be conspicuously posted. Employers should also consider updating company policies and train managers on how to reasonably accommodate pregnant employees.
- Understanding Reasonable Accommodations: Under the new laws, reasonable accommodations will include, but are not limited to, restroom breaks, periodic rest for pregnant women who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.
- What To Expect: Employers that do not provide pregnant employees with a workplace accommodation will have the burden of proving an “undue hardship.” Various factors are considered and generally mirror those found in the ADA, focusing on whether the accommodation will cause significant difficulty or expense.
EEOC Enforcement: In the EEOC’s Strategic Enforcement Plan for FY 2013-2016, it cautioned employers, corporate counsel, and HR professionals that the Commission is ramping up its focus on pregnancy discrimination allegations. Employers beware – the EEOC is making good on its promise. The EEOC continues to file an amplified number of pregnancy discrimination lawsuits, and there are no signs that the agency will slow down any time soon. EEOC enforcement tactics, coupled with new pregnancy discrimination laws send a clear signal to employers that they should be proactive and carefully consider requests for accommodation before taking action.
Suggestions For Employers
Employers in the cities or states discussed above should review the requirements of the related pregnancy discrimination laws. It is important that employees who evaluate accommodation requests are trained on the new laws, so as to not run afoul of them. Employers should also update company policies and procedures, with the goal of avoiding pregnancy discrimination and providing reasonable accommodations when appropriate. Preventative training measures will also help employers stay out of the EEOC’s crosshairs.