Client Bulletin #515
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Now that the New York City Council has added a pregnancy "reasonable accommodation" requirement to its human rights law (details of which are discussed below), employers everywhere should make sure that they are doing "enough" for their pregnant employees, assuming they were not already.
When it comes to pregnancy accommodation, NYC is near the cutting edge, but not quite on it. Approximately 10 states -- Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Michigan, New Hampshire, and Texas -- already require some type of pregnancy accommodation. (The laws in Alaska and Texas do not apply to private sector employers.) A little more than a year ago, the U.S. Equal Employment Opportunity Commission announced that it would be scrutinizing employers who required pregnant employees to take leaves of absence, including leave under the Family and Medical Leave Act, instead of making accommodations that would allow pregnant employees to stay on the job. A bill requiring pregnancy accommodation was introduced in the U.S. Congress last year but failed. And a provision similar to the NYC law was expected to pass in the New York state legislature this past summer but did not only because it was part of a more comprehensive 10-point Women's Equality Act, and the abortion provisions in that Act caused the entire bill to fail.
Background and history
No doubt many employers already believed that they were required to accommodate pregnant employees or did so voluntarily simply because they considered it to be the right thing to do. But the federal Pregnancy Discrimination Act, which amended Title VII to prohibit pregnancy discrimination, does not require reasonable accommodation of pregnancy or pregnancy-related conditions.
That fact is surprising to many, but it is probably a function of the time in which the federal PDA was enacted (1978). In the 1970's, it was not unheard of for employers to fire pregnant workers or to move them off jobs that were considered too strenuous. The primary concern of Congress at that time was to prevent discrimination based on pregnancy. Although reasonable accommodation of employees with disabilities was already required under the federal Rehabilitation Act of 1973 (as well as accommodation of religious beliefs and practices under Title VII), the Rehabilitation Act applied only to federal contractors, and religious accommodation issues were relatively scarce. Thus, the concept of "reasonable accommodation" was not widely known outside the contractor community until employers became familiar with the Americans with Disabilities Act in the 1990's.
Today, only two federal laws require reasonable accommodation by employers who are not federal contractors: Title VII (religion) and the ADA. The religious accommodation provisions of Title VII obviously would not apply to pregnancy. And the ADA specifically excludes pregnancy from conditions that would be considered "disabilities" entitling the individual to reasonable accommodation.
NOTE: It is possible that pregnancy could result in a medical condition that would be "disabling" within the meaning of the ADA. But the ADA does not apply to normal pregnancy or even a somewhat "complicated" pregnancy, such as one involving severe morning sickness, or one requiring bed rest or delivery by caesarian section.
As the PDA has been interpreted, employers must treat pregnant employees the same way that they would treat similarly situated non-pregnant employees. This has been interpreted to mean that a pregnant employee should be treated the same as any other employee with a short-term, non-work-related, medical condition (for example, a sprained ankle from a weekend softball game). Such employees are usually not covered by the ADA and therefore are not legally entitled to reasonable accommodation.
For some time, women's groups and others have been campaigning for laws at federal, state, and local levels that would require employers to make reasonable accommodations for pregnancy, an idea that appears to have widespread popular support that cuts across the usual "red/blue" political lines.
The NYC Pregnant Workers Fairness Act
The NYC law, introduced in November 2012, is called the Pregnant Workers Fairness Act, and applies to employers in the City with four or more employees (including independent contractors). The "findings" say that pregnant women in the City are often forced out on medical leave or fired when they request accommodations for their pregnancies. Examples of specific accommodations that the law says should be offered are "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, among other things." (Emphasis added.) Accommodations must be provided unless the employer can prove that doing so would create an "undue hardship."
The law does not define "pregnancy-related conditions," but arguably it could include preparations to become pregnant, such as fertility treatments, and post-partum conditions, such as lactation. The U.S. Court of Appeals for the Fifth Circuit* has already ruled in connection with the federal PDA that lactation is a pregnancy-related condition. The U.S. Court of Appeals for the Third Circuit** has held that the PDA prohibits discrimination against employees for having elective abortions.
*The Fifth Circuit hears appeals from federal courts in the states of Louisiana, Mississippi, and Texas.
**The Third Circuit hears appeals from federal courts in the states of Delaware, New Jersey, and Pennsylvania.
Employers in NYC will be required to post a notice (to be created), and provide it to new employees upon hire, and to current employees no later than 120 days after the effective date of the law. The law will take effect 120 days after September 23, 2013 (January 20, 2014).
If you have a question about pregnancy accommodation or discrimination, please contact any member of Constangy's Litigation Practice Group, or the Constangy attorney of your choice.
About Constangy, Brooks
& Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.