Future Pregnancies Now Addressed in EEOC Guidance

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Pregnancy discrimination is focus for new EEOC chairwoman

After a high-level executive with a 2-year-old son told her manager she was trying to get pregnant, the manager said a pregnancy could interfere with her job responsibilities, and two weeks later demoted her to a position that paid less and had no supervisory duties.

The U.S. Equal Employment Opportunity Commission (EEOC) went after the employer, concluding that the demotion’s timing and the manager's actions amounted to unlawful discrimination.

That’s one of many examples the EEOC provides in its new Pregnancy Discrimination Guidance, which now addresses discrimination based on the intention to become pregnant, not just against women who are currently pregnant.

The guidance “clearly reminds employers that pregnancy is not just a current state of affairs,” said Nancy Morrison O’Connor, a partner in the labor and employment group at Bracewell & Giuliani in Washington, D.C.

Repercussions against women  for being pregnant or raising children is an issue Jenny R. Yang plans to focus on as the newly named chairwoman of the EEOC.

“Many people would be surprised that [pregnancy discrimination] continues to be prevalent in the workplace—including people being fired, or job offers rescinded, or [women who] don’t receive ADA [Americans with Disabilities Act] accommodations related to pregnancy,” Yang told SHRM Online during a September 2014 interview. “There is this overarching view that once women have children, they will not be as reliable as they were before.”

The EEOC continues to receive a high number of pregnancy discrimination charges, even though it’s been 36 years since the passage of the Pregnancy Discrimination Act, an EEOC spokeswoman said.

Family responsibilities discrimination (FRD) cases have increased by 400 percent between 1996 and 2005, from 97 cases to 481 cases, according to Robert Wallace, an attorney with Wilson Elser Moskowitz Edelman & Dicker LLP. FRD cases are primarily brought as Title VII of the Civil Rights Act of 1964 or Pregnancy Discrimination Act cases, although FRD claims have also been brought under the Family and Medical Leave Act, the Americans with Disabilities Act, and the Equal Pay Act.

“The proliferation of FRD cases demonstrate[s] that stereotypical attitudes about motherhood and child care continue to permeate employment, sustaining the ‘mommy track’ that often exists in the workplace,” Wallace wrote in a 2007 client update. “The stereotypes include [that] mothers do not work as hard as other employees, mothers take more time off from work, mothers do not want to travel or new mothers should be at home.”

Pregnancy Discrimination Cases

A key EEOC case alleging pregnancy discrimination is pending before the U.S. Supreme Court.

Peggy Young, a driver for United Parcel Service (UPS) who sometimes had to lift packages weighing up to 70 pounds, became pregnant and gave her supervisor a note from her midwife recommending that she not lift more than 20 pounds during her pregnancy.

Young wanted to work at her regular job or be assigned to a light-duty position, but her request was denied. She sued UPS, alleging the company violated the Pregnancy Discrimination Act by failing to give her the same accommodations afforded nonpregnant workers whose physical disabilities presented them with comparable constraints.

An appeals court affirmed a lower court’s decision to grant summary judgment to UPS, upholding the determination not to accommodate Young’s lifting restriction. The appeals court called the company’s accommodations policy for other workers “pregnancy-blind.”

Another highly publicized case addressed discrimination based on future pregnancies.

In that case—Walsh v. National Computer Systems Inc.—an appeals court in 2003 upheld the plaintiff’s argument that she had been the victim of pregnancy discrimination after she returned from parental leave, and her supervisor suggested she look for another job when she requested a schedule change to pick up her son from day care by closing time. The manager referred to the woman’s son as “the sickling,” and once threw a phone book at the plaintiff and told her to find a pediatrician who was open after hours.

The supervisor also made threatening comments about any future pregnancy she might consider, and when she fainted on the job, announced that she’d “better not be pregnant again.” A jury awarded the plaintiff $625,526, and an appeals court concluded that she’d presented sufficient evidence that her potential to become pregnant in the future was the catalyst for her manager’s discriminatory conduct.

To avoid such lawsuits, O’Connor of Bracewell & Giuliani suggested that employers create anti-discrimination policies by “working backwards.”

“Your chances of treating pregnancy like any other disability are greater if you don’t treat it differently from the get-go,” she said. “Don’t start with a maternity or pregnancy policy. Start with a leave policy that’s generic. Then go back and see if you need to change it to accommodate special needs for pregnancy.”

She also said employers should ensure they’re familiar with all pregnancy-accommodation laws at the local, state and federal levels.

“There are specific state laws that define required accommodations,” she said. “Some state laws require that notices be posted in terms of leave and accommodations in their handbooks. The coordination of federal, state and local policies does require considerable effort and commitment, especially for national employers trying to keep up with all the changes on the local and state levels.”

Dana Wilkie is an online editor/manager for SHRM.

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