Pregnancy Discrimination: Do Your Company’s Accommodation Policies Comply with Title VII & the ADA?

By Janell Ahnert

Employers are experiencing a steady rise in discrimination claims asserting that the company failed to accommodate pregnancy-related medical restrictions.  In light of this litigation trend, cognizant employers should review their accommodation policies and procedures; training programs for supervisors, human resources staff and safety employees; and personnel forms and documentation to ensure compliance with both the American with Disabilities Act Amendments Act (“ADAAA”) and Title VII of the Civil Rights Act (“Title VII”) as amended by the Pregnancy Discrimination Act (“PDA”).

EEOC Strategic Enforcement Plan

The increase in pregnancy discrimination litigation is being fueled by several factors, one being the focus of the Equal Employment Opportunity Commission (“EEOC”) on these claims.  In the EEOC’s Strategic Enforcement Plan for years 2017-2021, which establishes priority categories regarding enforcement and litigation by the EEOC, the EEOC has targeted employer accommodation of pregnancy-related limitations.  As the EEOC continues to focus its resources on investigating and pursuing pregnancy accommodation claims, employers will predictably see an increase in the number of these claims.

Expanded Coverage of the ADA

Another factor leading to an increase in pregnancy accommodation claims is the fact that the ADAAA greatly expanded the definition of disability, requiring reasonable accommodation of even temporary health conditions.  Although pregnancy is still not considered a disability, many pregnancy-related health issues are covered by the ADAAA.  Examples of pregnancy conditions that could require reasonable accommodation include, but are not limited to, gestational diabetes, preeclampsia, anemia, and morning sickness.  Reasonable accommodations could include flexible schedule, modified policies, lift assists, frequent breaks, sitting, snacks at workstation, working remotely, ergonomic equipment, and other potential solutions. 

Even under the expanded ADAAA, the employer is not required to create a new position to accommodate a disability.  However, as discussed below, under the PDA, an employer may be required to create temporary light duty work assignments for pregnant employees, if the employer creates them for non-pregnant employees.

Young v. United Parcel Services

In 2015, the United States Supreme Court decided Young v. United Parcel Services, Inc.,providing a new framework for pregnant employees to challenge accommodation practices under the PDA.  135 S. Ct. 1338 (2015).  The Young Court modified the McDonnell Douglas framework, holding that a pregnant employee pursuing a PDA claim may establish her initial burden by showing she belongs to the protected class; that she sought accommodation; that the employer did not accommodate her; and that the employer did accommodate others “similar in their ability or inability to work.”  135 S.Ct. at 54 (quoting 42 U.S.C. § 20000e(k) (2012)).  This initial burden can be met by showing that other employees received accommodations for physical limitations like those needed by the pregnant employee.  Non-pregnant employees accommodated under the ADAAA, for both personal medical issues and, potentially, on-the-job work injuries, may be proper comparators under the PDA.

Once this initialburden is established, it is then up to the employer to provide its rationale as to why it treated the pregnant employee’s accommodation request differently from other employees it did accommodate.  In its decision, the Young Court held that an employer’s legitimate non-discriminatory reason, “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those . . . whom the employer accommodates.”  Id. at 1354.  As such, an argument that accommodating pregnant employees is too costly or complicated (in light of the fact that the employer accommodates non-pregnant employees for similar medical issues) will be rejected as a legitimate rationale.

If the employer can provide an acceptable rationale for the difference in accommodating non-pregnant employees but not pregnant employees, the Young Court established that a pregnant employee can still reach a jury by providing evidence that “the employer’s policies impose a significant burden on pregnant workers, and that the employers ‘legitimate non-discriminatory’ reasons are not sufficiently strong to justify that burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.”  Id. at1354. 

Pregnancy Accommodation Litigation Following ADAAA & Young

Because Young’s claim arose prior to the amendments to the ADA, the Supreme Court did not analyze the case under the ADAAA, only under the PDA.  As such, it is unclear how the Supreme Court would have decided the case as a post-ADAAA pregnancy accommodation claim.  However, lower courts are consistently finding that pregnancy-related temporary medical conditions, like the ones listed above, are covered by the ADAAA and, as such, employers must reasonably accommodate them. 

It addition, the Supreme Court in Young chose not to directly answer a crucial question that continues to plague employers:  Whether an employer must provide light duty to pregnant employees in the same manner that it provides light duty to employees injured on the job.  The failure to address this issue has resulted in lower courts struggling with determining if employees with work-related injuries who are assigned temporary light duty work are proper comparators for pregnant employees who also require light duty.  See e.g., Legg v. Ulster County, 820 F.3d 67, 74 (2^d Cir. 2016) (finding proper comparators those employees who were unable to perform non-light-duty tasks as a result of injuries incurred on-duty); Durham v. Rural/Metro Corp., 2018 WL 4896346 *2 (N.D. Ala. Oct. 9, 2018) (appeal filed 11^th Cir., Nov. 7, 2018; oral argument held on Jan. 15, 2020)  (rejecting employee’s claim that the employer’s policy providing transitional light duty assignments only to employees suffering from work-related injuries, and not pregnancy, violated the PDA). 

In response to the ambiguities resulting from Young, the Pregnant Workers Fairness Act (H.R. 2694), was reintroduced in the House of Representatives in May 2019.  The bill would require employers to provide reasonable accommodations, including job modifications, to pregnant employees and prohibit employers from denying employment opportunities to woman who may need pregnancy accommodations.  On January 14, 2020, the House Education and Labor Committee approved an amended version of the bill incorporating bi-partisan revisions. However, it is unclear when or if the bill will receive a House vote.  Further, it is anticipated that the bill will not pass the Senate.

Until the Supreme Court, or Congress, addresses the uncertainty left after Young regarding this specific comparator issue, a cautious employer should revise any light duty policies that apply only to employees injured on-the-job and fail to accommodate pregnant employees requiring light duty work assignments. 

Additional Compliance Tips

• Training – Front-line supervisors and safety managers must be trained to recognize pregnancy-related medical issues as potentially triggering accommodation requirements.  These supervisors must recognize that requests by pregnant employees for work changes such as leave, additional bathroom breaks, or having access to food in their work area may be requests for accommodations, which should be forwarded promptly to HR.  At the same time, managers must fully understand that pregnancy in and of itself is not a disability and is rarely reason to deny the employee work assignments or overtime assignments.  A manager must never assume that an employee needs special treatment or accommodation simply because of a pregnancy. 
• Job Descriptions – Accurate job descriptions describing the physical requirements of each position and identifying essential job duties should be drafted and reviewed periodically for needed revisions.  Job descriptions containing specific requirements for physical duties such as standing, lifting, pulling, pushing, etc., are helpful to treating physicians in determining if a pregnant employee requires accommodation.  In addition, if an employer must defend an ADAAA claim, such job descriptions are critical in establishing the essential functions of each job.
• No Fault Attendance Policies – Employers utilizing “no fault” attendance policies, under which employees receive points for absences regardless of the reason, must be mindful that a potential reasonable accommodation may be to excuse absences.  Absences covered by the Family Medical Leave Act (“FMLA”), which may include pregnancy-related medical absences, may not result in the accrual of points under any such attendance policies. 
• Review Workers’ Compensation Light Duty Policies – Creating light duty temporary assignments for on-the-job injuries may result in evidence of discrimination under the PDA if such light duty temporary assignments are not also created for pregnant employees.  Be mindful of this issue and proceed with caution.
• Leave as an Accommodation – If a pregnant employee cannot be accommodated otherwise, consider leave as an accommodation.  Check to see if the employee is eligible for FMLA leave or short-term disability benefits.  Even if not eligible for these types of leave, allowing the employee to take an unpaid leave of absence as an accommodation may be required.  However, an employer may not force an employee to take leave because of pregnancy, as long as she can perform the essential functions of her job, with or without reasonable accommodation.  Requiring an employee to take leave against her wishes violates the PDA even if the employer believes it is acting in the employee’s best interest.
• Be Mindful of Individual State Laws – Currently, at least 27 states and the District of Columbia have passed laws protecting pregnant employees.  Be mindful that there could be a specific state requirements with which your company must comply.
• Breast Feeding & Lactation – Lactation is a medical condition related to pregnancy under the PDA and employers cannot discriminate against women who need to express breast milk during work hours.  In addition, nursing mothers are protected under the Fair Labor Standards Act (“FLSA”), which requires employers to provide reasonable break times during work shifts to pump breast milk.  Although employers are not required to pay employees for time spent pumping, the employer must provide a private space, other than a bathroom, to the employee to express milk.