Employers are likely well aware that pregnancy discrimination is prohibited by federal law (and, in most places, including New York, state and local law). And yet, pregnancy bias suits continue to be an issue for employers. In fact, a recent analysis shows that such filings show a rising trend, and have increased by almost double since 2015. The data further shows that retail employers were the hardest hit this year with 14 of the 54 cases filed being filed against retail employers. Just this last month alone, four more were filed against retail employers. The cases filed recently focus on an employer's failure to provide accommodations to pregnant employees. This focus was further highlighted by a multi-million dollar settlement finalized this month against one women's retailer for claims of systemic discrimination against pregnant employees and failing to accommodate such employees. The settlement also included change to policies, mandatory training and periodic reporting to the EEOC.
The Pregnancy Discrimination Act, at the federal level, requires that a pregnant employee be treated like any other employee who is temporarily disabled. Having a robust policy is important, but it's toothless if staff is not properly trained on how to implement the policy. Managers must be trained to consider accommodations for pregnant employees. This is especially true for employees (like those in retail or hospitality) who do more manual labor (e.g., lifting boxes, working on their feet, pulling or pushing heavy objects, etc.). Accommodations to consider are things like an alternative assignment, light duty, more frequent breaks, lifting restrictions, a stool or chair rather than requiring constant standing, or even a disability leave. Notably, under New York law, pregnancy-related conditions are to be treated as disabilities, but there is no requirement that a pregnancy-related condition meet a definition of a "disability" in order for an employer to be required to accommodate. For instance, if an employee has a more frequent need to use the restroom while pregnant, she is not required to show that she has a disability that so causes more frequent use of the restroom in order for the employer to be required to provide more frequent breaks.
Just because a normal non-pregnant employee would not be granted these privileges, does not mean that they are not proper accommodations for someone who is pregnant, and like all accommodations, the employer and employee should engage in the interactive process in order to determine the best accommodation for each employee.
Employers should use these recent cases as reminders for them to reevaluate their policies, training, and practice and ensure that pregnant employees are being properly accommodated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
