One of the biggest issues for employers is the growing trend of state- and local-level legislation expanding protections for pregnant employees. In 2014, Delaware, New Jersey, Maryland, Illinois and West Virginia enacted statewide pregnancy discrimination laws, with similar laws currently under review in at least six other states. At the city level, Philadelphia, PA and New York City, NY also created laws protecting pregnant employees.
These recent state- and local-level amendments are not the only pregnancy-related legislation on the table. Last year, the Pregnant Workers Fairness Act was introduced to both houses of Congress. If passed, this bill would require every employer in the nation to provide reasonable accommodations to pregnant employees.
These new amendments extend further protection than what's already offered under the existing Pregnancy Discrimination Act (PDA). The PDA, an amendment to Title VII of the Civil Rights Act, is a federal law prohibiting discrimination on the basis of pregnancy, stating that pregnant women “shall be treated the same for all employment-related purposes.”
While the PDA helps shield pregnant women from discrimination in the workplace, it is limited in the types of practical protections it provides. For example, there are no clear guidelines in the PDA regarding reasonable accommodations, so it’s not uncommon for employers to enter a legal gray area and overlook the specific needs of pregnant employees.
According to a study conducted by the National Partnership for Women & Families, nearly two-thirds of women between 18-45 who had given birth between July 2011 and June 2012 experienced these obstacles to working effectively and managing their health during their pregnancies:
- 71 percent needed more frequent breaks
- 61 percent needed adjustments to their schedule to get medical care
- 50 percent needed a change in duties, such as less heavy lifting or more chances to sit
- 40 percent needed some other type of workplace adjustment
Unfortunately, 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 (EEOC) is on the rise. Within the past decade, there has been a 50 percent increase in pregnancy-related claims, 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 and, in July, issued new guidance for employers.
Although details may 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 protect your business from potential lawsuits, you should be open to discussing reasonable accommodations with pregnant employees. Unless they cause an undue hardship on your business, such accommodations may include:
- Frequent restroom and water-drinking breaks
- Rest breaks for jobs requiring long bouts of standing
- Assistance with manual labor, such as heavy lifting
- Modified work schedules or job restructuring
- Temporary job transfers if the job requires strenuous or hazardous work
- Leave for a disability resulting from childbirth
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.