3 Things Employers Need to Know About Pregnancy Discrimination

The matrix of leave and disability laws affecting pregnant women is involved and requires diligent risk management on the part of employers.
By: | June 25, 2019

More moms in the U.S. are staying in the workforce after giving birth. According to Pew Research Center, 70% of moms with kids younger than 18 were in the labor force in 2015, up from 47% in 1975.

Both to support working mothers and keep themselves in compliance, employers need to understand how to accommodate and retain pregnant workers and new parents. But the web of various federal and state laws that protect workers’ family lives can leave employers unsure of their responsibilities.

In a recent webinar title “Employer Obligations to Pregnant Employees and New Parents,” the Disability Management Employer Coalition (DMEC) breaks down what companies need to know. Here are the three key takeaways from the discussion:

1) The regulatory landscape is a minefield … but that’s no excuse for not knowing the rules.

Two federal regulations — the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) leave plenty of gray area between them. The PDA states that pregnant employees cannot be treated any differently than non-pregnant employees with a similar ability or inability to work. That could include disabled employees who have similar restrictions on lifting anything over 25 pounds or standing for long periods for time without breaks, for example.

In practice, then, pregnancy should be treated as a disability by employers. But the ADA stops a step short. The ADA states that pregnancy and childbirth are not disabilities … but pregnancy- and childbirth-related complications might be. This includes conditions like gestational diabetes, preeclampsia and postpartum depression.

State laws add more nuance to the mix.

Many have a list of reasonable accommodations that should be provided absent undue hardship, including more frequent or longer break periods, modification of equipment or seating, limitations on lifting, or a modified work schedule. Some states require medical documentation from pregnant women before granting any accommodations, while others specifically bar employers from asking for such documentation.

The misalignment between the PDA and ADA over whether pregnancy should be treated as a disability, in addition to varied state laws, creates confusion for some employers and ultimately gets them in trouble with the Equal Employment Opportunity Commission (EEOC).

That being said, “there is no substitute for reading the regulations,” said Marti Cardi, VP of product Compliance for Matrix Absence Management and a webinar presenter.

2) The EEOC has made pregnancy discrimination a top litigation priority, but seeks change instead of dollars.

In 2018, EEOC received 2,790 charges of pregnancy discrimination, settled 322 of them and recovered $16.6 million for employees. Many cases are brought against companies who failed to offer pregnant employees the same accommodations offered to nonpregnant disabled employees.

But some of the more notable cases stand out because they represent not just a misunderstanding of pregnancy discrimination laws, but rather a flagrant disregard for them.

Gail Cohen, director, employment law and compliance, Matrix Absence Management

In the case of EEOC vs. Scribe-X Northwest, for example, a woman applied for a job online, passed all of the hiring screens and was offered a position. Then she told the company she was expecting a baby in a few months. The CEO of Scribe-X called her to rescind the offer, telling her the company would not have hired her if they had known she was pregnant, and that she should have disclosed the information earlier. The case settled for $80,000.

In the case of Dash Dreams Plant Inc., employees were routinely terminated when they disclosed a pregnancy or not hired back after the birth of a child. Supervisors told female employees in meetings that “the next person to get pregnant should just stay home and considered herself fired.” The EEOC ultimately recovered $110,000 for impacted employees.

Other employers faced action for illegal policies like forcing new mothers to take a leave of absence, terminating pregnant workers at five months, or failing to promote women after asking them about their future childbearing and childcare plans.

Marti Cardi, VP of product compliance, Matrix Absence Management

And then there’s this case, which was a perfect storm of inappropriate and illegal employer behavior.

The amounts recovered by the EEOC are generally not large. Instead, “the EEOC will insist on settlement terms that are not monetary, requiring employers to adjust their policy, do annual training of managers, supervisors and sometimes entire workforce, and reporting to the EEOC which retain oversight for up to five years,” said Gail Cohen, director, employment law and compliance, Matrix Absence Management.

“They also often require companies to post a notice of the settlement on an employee notice board. Some have been asked to create a central tracking system to track all pregnancy accommodation requests and how they were handled, which may require bringing in an external coordinator to handle those requests.”

3) Family discrimination laws extend beyond pregnancy.

Accommodating new parents doesn’t stop at childbirth. The Family Medical Leave Act (FMLA) allows time off for biological, foster and adoptive parents to bond with a new child or take care of a child with serious health conditions. Sixteen states currently have some type of family leave law in the books. Importantly, leave for bonding and return-to-work benefits must be equal for fathers and mothers.

In 2018, the EEOC settled with Estee Lauder for $1.1 million after the company failed to provide equal bonding time for fathers and provided fathers with no return to work benefits.

In 2019, JP Morgan Chase paid $5 million in a case in which a new father was denied longer leave time, unless he could prove that he was his child’s primary caregiver instead of his wife.

The ADA also protects parents from discrimination on the basis of a child’s disability. Employers cannot demote, fire or fail to promote employees based on assumptions about an employee’s commitments as home.

Cohen and Cardi encouraged employers to get to know the laws in their state and conduct a thorough review of their policies. Hiring a pregnancy and disability specialist can help to cover the bases. &

Katie Dwyer is a freelance editor and writer based out of Philadelphia. She can be reached at [email protected].

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