What to expect when your employees are expecting

 Leonard D. Zamansky, The Daily Record Newswire

Women’s equality in the workplace is in the national spotlight. Democratic leader Nancy Pelosi and House Democrats recently proposed a new agenda, titled “When Women Succeed, America Succeeds: An Economic Agenda for Women and Families,” which addresses the needs of women and families, including equal pay, work and family balance, and child care.

Among the issues affecting women and families is pregnancy discrimination. Pregnancy bias claims have increased over the past decade. In February 2012, the U.S. Equal Employment Opportunity Commission announced that it received 53,865 pregnancy-related claims over the previous 10 fiscal years, resulting in $150.5 million in monetary benefits to claimants. “Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities,” EEOC meeting (Feb. 15, 2012) (written testimony of Peggy Mastroianni, EEOC legal counsel).

On Dec. 17, 2012, the EEOC approved a strategic enforcement plan for fiscal years 2013 to 2016. The plan lists among its national priorities addressing emerging or developing issues such as accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act. In other words, pregnancy discrimination is a hot-button issue for the EEOC.

Most employers will need to know what to do, and not do, when their employees are expecting. Women currently comprise 47 percent of the national workforce. “Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities,” EEOC meeting (Feb. 15, 2012) (written testimony of Judith L. Lichtman, senior advisor, National Partnership for Women and Families (citing Bureau of Labor Statistics, Women in the Labor Force: A Databook (2011)).

Most women continue to work while they are pregnant. Lichtman, supra, (citing Lydia Laughlin, U.S. Census Bureau, “Maternity Leave and Employment Patterns of First-Time Mothers: 1961-2008” (2011)).

Decisions construing Pregnancy Discrimination Act

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits sex discrimination on the basis of pregnancy, childbirth and related medical conditions. 42 U.S.C.A. §2000e(k).

Employers must treat women affected by pregnancy, childbirth or related conditions for all employment-related purposes the same as other persons not so affected but similar in their ability or inability to work. Id.

Federal courts of appeal have recently addressed various issues under the Pregnancy Discrimination Act, including breastfeeding and lactation, light-duty assignments and leave requirements.

 • Breastfeeding and lactation

In a case of first impression, the 5th U.S. Circuit Court of Appeals held that an employer’s discharge of an employee because she was lactating or expressing breast milk constituted sex discrimination that violated Title VII. EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013).

Two other federal courts of appeal rejected former employees’ claims that employers violated Title VII by allegedly failing to accommodate their employees’ breastfeeding schedules. Stanley v. Abacus Technology Corp., 359 F. App’x 926 (10th Cir. 2010) (rejecting the plaintiff’s argument that her termination after she refused a work assignment during her lunch hour constituted discrimination because she did not claim a need to breastfeed at the time of the assignment); Puente v. Ridge, 324 F. App’x 423 (5th Cir. 2009) (dismissing an employee’s claim that her employer discriminated against her by denying her breaks to express breast milk in addition to breaks already provided to all employees).

In Houston Funding II, after Donnica Venters took a leave of absence from her job to have her baby, she called the company’s limited partner about returning to work. She told him that she was lactating and asked if she could use a back room to pump breast milk.

She testified that, after asking that question, there was a long pause, followed by the limited partner stating that her position had been filled. Venters filed a claim of discrimination, the District Court entered summary judgment for Houston Funding, and Venters appealed.

The court of appeals held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act. It reasoned that lactating is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.

The court noted that “medical condition” as defined in the dictionary includes any physiological condition and that it is difficult to see how the term could not encompass lactation. The court held that the plaintiff had stated a prima facie case of sex discrimination by showing that the employer fired her because she was lactating and wanted to express milk at work.

The 5th Circuit said that Venters also offered evidence that the employer’s stated reason for discharging her, job abandonment, was pretextual. Reversing summary judgment in favor of the employer, the court held that a fact finder could conclude that Houston Funding had violated Title VII by discharging Venters.

• Light-duty assignments

Four federal courts of appeal have held that employers’ policies of providing light-duty assignments only to employees with work-related injuries do not constitute bias under the Pregnancy Discrimination Act. Young v. United Parcel Service, 707 F.3d 437, 443 (4th Cir. 2013); Freppon v. City of Chandler, 2013 WL 3285628 (10th Cir. July 1, 2013) (rejecting a worker’s claim that her employer’s denial of light duty and forced FMLA leave due to her pregnancy constituted discrimination when the employer initially made light duty available only to employees injured on the job and subsequently eliminated light duty for all employees regardless of whether their injuries were work-related); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7th Cir. 2011); Reeves v. Swift Transportation Co., Inc., 446 F.3d 637 (6th Cir. 2006).

In Young v. United Parcel Service, the 4th Circuit affirmed summary judgment for an employer on claims that it violated the Pregnancy Discrimination Act and Americans with Disability Act. The employer made light-duty assignments for employees who suffered work-related injuries but not for those with conditions that did not stem from work, such as pregnancy.

UPS refused to allow employee Peggy Young to return to work as a delivery driver during her pregnancy due to a 20-pound lifting restriction imposed by her health care providers. UPS required its drivers be able to lift at least 70 pounds.

The company offered light duty to employees with on-the-job injuries, those entitled to accommodation under the ADA, and those who had lost DOT certification, but not for pregnancy.

The District Court rejected the EEOC’s discrimination claim filed on Young’s behalf, and the EEOC appealed.

Young argued that UPS’s policy of limiting light-duty work to certain employees, including those who suffered job-related injuries but not pregnant workers, violated the Pregnancy Discrimination Act.

The court disagreed, holding that UPS’s policy was a pregnancy-blind policy. It said that such a policy is at least facially a “neutral and legitimate business practice” and not evidence of UPS’s discriminatory animus toward pregnant workers.

The court noted that the PDA “does not ...  require employers to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees.” Id. at 447.

Young argued in support of her Pregnancy Discrimination Act claim that she was similarly situated to employees to whom light duty was available, including those who were injured on the job, and that she was treated differently.

Affirming summary judgment for UPS, the 4th Circuit concluded that a pregnant worker subject to a temporary lifting restriction is not similar in her “ability or inability to work,” as required for a Pregnancy Discrimination Act claim, to an employee injured on the job because her inability to work does not arise from an on-the job injury.

It reasoned that the collective bargaining agreement reasonably placed a heightened obligation on UPS to accommodate employees with job-related injuries, as opposed to employees injured through other activities.

Affirming summary judgment for UPS, the court concluded that the Pregnancy Discrimination Act does not render that distinction unlawful. The court also held that the evidence did not support Young’s arguments regarding her ADA claim that UPS regarded her as disabled.

• Leaves of absence

Two federal appeals courts have held that an employer’s failure to allow leave to its employee who required bed rest for pregnancy-related complications did not constitute discrimination. Anderson v. Cato Corp., 444 F. App’x 280 (10th Cir. 2011). See also Spees v. James Marine, Inc., 617 F.3d 380, 396 (6th Cir. 2010) (holding that employer’s termination of employee based on a combination of her being unable to work due to a bed rest note and her lack of available medical leave did not constitute discrimination under the Pregnancy Discrimination Act).

Similarly, the 5th Circuit found no discrimination after an employer fired an employee at the expiration of her leave because the employee was confined to her home for the duration of her high-risk pregnancy and thus could not perform her job of calling on customers. Appel v. Inspire Pharmaceuticals, Inc., 428 F. App’x 279 (5th Cir. 2011).

In Anderson v. Cato Corp., the 10th Circuit held that an employer’s reasons for terminating its employee — that pregnancy-related complications resulted in a physician’s ordering three-weeks’ bed rest for which the part-time employee was not eligible — were not a pretext for pregnancy discrimination.

Cynthia Anderson began working as a part-time sales associate for Cato in February 2008. She learned that she was pregnant in April of that year, and her doctor wrote a note prescribing bed rest for three weeks for pregnancy-related conditions.

Cato terminated Anderson because she was not eligible for FMLA or any other leave. Cato’s documents stated that Anderson was eligible for rehire.

The District Court entered summary judgment for Cato on Anderson’s employment claim, and Anderson appealed.

Anderson argued that Cato’s proffered reason for terminating her employment —that she needed leave to which she was not entitled — was a pretext for unlawful discrimination.

Affirming the summary judgment for Cato, the court of appeals disagreed, stating that no reasonable juror could infer that Cato fired Anderson simply because of her pregnancy-related illness. The court noted that the Pregnancy Discrimination Act requires employers to treat pregnant employees the same as other persons not so affected but similar in their ability or inability to work for all employment-related purposes, including receipt of benefits under fringe benefit programs.

As the law regarding pregnancy discrimination continues to develop, so too do the issues in this area of which employers should be aware.

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Leonard D. Zamansky practices at Melick & Porter in Boston.

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