june2022 - 14

THE LABOR LAW ADVISOR
Pregnant Employees
and Employer Obligations
WOMEN COMPRISE OVER half the American workforce, and that number increases
annually. While sexual harassment and gender equity issues often garner more attention,
how to deal with a pregnant employee who may have work limitations continues to
vex employers. It's an issue that's often a source of consternation, and if improperly
handled could result in legal liability to employers.
In 1978 Congress passed the
Pregnancy Discrimination Act (PDA),
which established that pregnancyrelated
matters are encompassed
within the prohibition against sex
discrimination under Title VII of the
Civil Rights Act of 1964. In essence,
it requires employers to provide the
same accommodations to pregnant
women as any other employee with
similar ability or inability to work.
In addition to federal law, almost
50% of the states and numerous
cities have adopted regulations
requiring employers to provide
work accommodations for pregnant
employees. Accommodations for
pregnant employees have been
an enforcement priority for the
Equal Employment Opportunity
Commission (EEOC). It was identified
as a " National Substantive Area
Priority " under the 2017-2021 EEOC
Strategic Enforcement Plan (SEP).
The Americans with Disabilities
Act (ADA) also imposes certain
employer obligations regarding
pregnancy. Generally, the ADA
requires employers to provide
reasonable
accommodation
pregnancy-related impairments might
more easily qualify as " disabilities "
today than before the amendments.
For example, the following pregnancyrelated
conditions could constitute a
disability under the ADAA: anemia,
depression,
gestational diabetes,
morning sickness, preeclampsia, and
swelling of the feet and legs.
The Supreme Court addressed
employers' responsibility to
accommodate pregnant employees
in 2015. In the case of Young v. UPS,
the Court ruled in favor of a pregnant
UPS driver who challenged UPS's
denial of light duty work assignments
during pregnancy to accommodate
her
lifting restrictions. UPS had
to
employees with a " disability " that
affects their ability to perform
their job. While pregnancy is not
a disability, numerous pregnancyrelated
conditions qualify as
disabilities requiring employers to
potentially provide accommodation.
The ADA Amendments Act (ADAAA)
passed in 2009 expanded the
definition of a " disability. " Thus,
successfully argued before the lower
courts that light duty was properly
reserved for employees injured on
the job and that pregnancy was not
similar. The Court concluded that
an employer is required to offer a
reasonable accommodation to a
pregnant employee to the same extent
that it offered an accommodation
to any other employee that was
similarly limited.
In
2019 the
House
Representatives proposed a
bill
entitled The Pregnant Workers
Fairness Act with the stated purpose
of clarifying the ruling in the Young
v. UPS case. It was contended that
despite the provisions of the PDA and
the Young decision, similar situations
of pregnant employees denied
accommodation continued to arise in
many workplaces. According to Gillian
14 JUNE 2022 ■ www.CPAPracticeAdvisor.com
Thomas, a senior attorney with the
ACLU's Woman's Rights Project, " [r]
oughly a quarter of a million women
a year do not get the accommodations
they need to keep working. " She noted
despite the clear legal requirements,
pregnant women are still being
forced off the job. Had the proposed
law passed, it would have mandated
employers utilize the " interactive
process " to determine what reasonable
accommodation(s) can be offered to
pregnant workers, which is the same
framework required under the ADA.
Notwithstanding claims of
continued employer failures to
accommodate pregnant employees,
the requirements under the relevant
legal authorities is clear. For current
pregnancy, an employer cannot fire,
refuse to hire, demote, or take other
adverse action against a woman
motivated by pregnancy, childbirth,
or related medical condition. This is
true even if the employer believes
it is acting in the employee's best
interest.
Similarly, an employer
of
may not discriminate based upon
an employee's intention or potential
to become pregnant. Nor may an
employer force an employee to
take leave because she is pregnant.
If the employee is limited in the
performance of her job duties and is
entitled to accommodation under the
PDA or ADA, an employer may need to
provide reasonable accommodation.
Not all pregnant employees
develop limitations affecting their
ability to perform their job. However,
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
when limitations do arise, employers
should carefully consider the
following questions:
■What limitations is the employee
experiencing?
■ How do these limitations affect job
performance?
■What specific tasks that pose a
problem? and
■What accommodations could reduce
or eliminate the job performance
issues?
The broad categories of functions
that can be affected by pregnancyrelated
limitations include bending,
carrying, climbing, kneeling, lifting,
pushing and/or pulling, sitting,
standing, temperature sensitivity,
toileting or grooming issues, and
dietary needs.
Among
the
types
of
accommodations employers should
consider to address pregnancy-related
limitations are reassigning marginal or
nonessential job functions that pose
a problem for the pregnant employee,
modifying a work schedule, modifying
workplace policies such as allowing a
pregnant employee more frequent
breaks, temporarily reassigning
the employee to light duty, and
granting leave.
In light of the continuing focus
on employer workplace obligations to
pregnant employees, defending a claim
of failure to accommodate a pregnant
employee's job limitations may prove
increasingly difficult for employers.
Such claims are clearly a priority for
EEOC enforcement and can become
quite high profile and every employer
should diligently seek to avoid them. ■
http://www.CPAPracticeAdvisor.com
june2022

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