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Apr 2, 2014

By Ashley Kaplan

When Jennifer Latowski, a certified nursing assistant at Northwoods Nursing Center, shared with her supervisor that she was pregnant, she was asked to obtain a doctor’s note stating that she had no work restrictions.

Instead, Latowski’s physician issued a 50-pound lifting restriction.

As a result, Northwoods told Latowski she could no longer work for them because they only accommodated restrictions caused from work-related incidents. Latowski filed a wrongful termination suit claiming disability and pregnancy discrimination in Latowski v. Northwoods Nursing Center.

While the lower court ruled in favor of the employer, the Sixth Circuit U.S. Court of Appeals in Cincinnati reversed the decision in support of Latowski’s pregnancy discrimination claim, pointing out that a neutral, “pregnancy blind” policy could be considered grounds for discrimination.

This employer learned the hard way that a policy allowing light duty work only for injured employees could become a basis for pregnancy discrimination, especially if it keeps a “similarly situated” pregnant employee from performing her job.

It also highlights the growing trend of state- and local-level legislation expanding protections for pregnant employees. Here’s what employers need to know to avoid any legal snags with the emerging legislation.

Limitations with the Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act, is a federal law that prohibits discrimination on the basis of pregnancy, stating that pregnant women “shall be treated the same for all employment-related purposes.”

While designed to shield pregnant women from discrimination in the workplace, the PDA is limited in the types of practical protections it provides. Without clear guidelines regarding reasonable accommodations, for example, some employers may enter a legal gray area and overlook the specific needs of pregnant employees.

A study conducted by the National Partnership for Women & Families found that nearly two-thirds of women aged 18-45 who had given birth between July 2011 and June 2012 experienced the following obstacles to working effectively and managing their health during their pregnancies:

  • 71 percent needed more frequent breaks;
  • 61 percent needed adjustments to their schedules to get medical care;
  • 50 percent needed a change in duties, such as less heavy lifting or more chances to sit; and,
  • 40 percent needed some other type of workplace adjustment.

As we’ve learned, oversights like this can leave a company vulnerable to discrimination lawsuits. In fact, the number of pregnancy-related claims filed with the Equal Employment Opportunity Commission has grown by almost 50 percent in the past decade, according to the National Women’s Law Center.

The issue is so pervasive that the EEOC has added pregnancy discrimination to its list of enforcement priorities.

Introducing state and local legislation

So what does this shift in enforcement priorities mean for employers?

As a result of the federal-level limitations, many states and cities are enacting laws that extend protections for pregnant workers. These amendments go beyond the basic anti-discrimination provisions by requiring employers to provide reasonable accommodations for pregnant employees.

Among the recent legislative developments:

  • New Jersey – Law Against Discrimination – Effective Jan. 21, 2014;
  • Maryland – Reasonable Accommodations for Disabilities Due to Pregnancy Law (amendment to Fair Employment Practices Act) – Effective Oct. 1, 2013;
  • West Virginia – Pregnant Workers Fairness Act – Effective Feb. 5, 2014;
  • New York City – Pregnant Workers Fairness Act (amendment to Human Rights Law) – Effective Jan. 30, 2014;
  • Philadelphia, PA – Fair Practices Ordinance – Effective Jan. 20, 2014.

California and Hawaii already require reasonable accommodations, while Connecticut and Louisiana give pregnant workers the right to transfer to a vacant position or take unpaid leave. Alaska, Texas and Illinois support accommodations for certain public employees.

While the details vary, the obligation to provide accommodations arises “when the employee, based on the advice of her physician, requests the accommodation, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.” (Determined on a case-by-case basis, undue hardship is defined as any action requiring significant difficulty or expense in relation to the size, resources, nature and structure of an employer’s business.)

To stay on the right side of the law with pregnant employees, employers should be open to discussions regarding reasonable accommodations. Depending on the specifics of the workplace and the employee’s position, this may include:

  • More frequent restroom and water-drinking breaks;
  • Periodic rest for jobs requiring long bouts of standing;
  • Assistance with manual labor;
  • Job restructuring or modified work schedules;
  • Temporary transfers to less strenuous or hazardous work;
  • Leave for a disability resulting from childbirth.

Expect continued protections

These recent state- and local-level amendments are not the only legislative activity in this area. The Pregnant Workers Fairness Act, a federal bill that would provide more far-reaching protections than state law, was introduced to both houses of Congress last year.

The cornerstone of the bill is that every employer in the nation would need to provide reasonable accommodations to pregnant employees.

As more cities, states and potentially the federal government propose legislation, it’s important for employers to consider expanding reasonable accommodations and prepare for an increase in continued protections.