1. law, govt and politics

AMERICAN BAR ASSOCIATION
NATIONAL CONFERENCE ON EQUAL
EMPLOYMENT OPPORTUNITY LAW
PREGNANCY, PARENTING AND CAREERS –
LEAVE, PAY AND PROMOTION BIAS
Lynne C. Hermle
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
(650) 614-7422
[email protected]
BEIJING • BERLIN • DÜSSELDORF • FRANKFURT • HONG KONG • LONDON • LOS ANGELES • MILAN •
MOSCOW • NEW YORK • PARIS
PORTLAND • ROME • SACRAMENTO • SAN FRANCISCO • SEATTLE • SHANGHAI • SILICON VALLEY •
TOKYO • WASHINGTON, D.C.
© 2013, Orrick, Herrington & Sutcliffe LLP. All rights reserved. These materials are distributed for
informational purposes only and are not intended nor should be construed as legal advice.
I.
INTRODUCTION
Pregnancy discrimination is a “widespread problem” in the workplace, stated EEOC
regional attorney C. Emanuel Smith recently in announcing the settlement of a pregnancy
complaint issued by the agency, “no matter the size of the employer.” 1
According to the facts alleged in complaints filed by the EEOC and private plaintiffs,
stereotypes regarding new mothers and mothers-to-be have persisted long beyond expectations
regarding their extinction. 2 In an effort to address these viewpoints, Congress enacted the
Pregnancy Discrimination Act (“PDA”), which offers protections for women in the workforce
affected by pregnancy, childbirth, or related medical conditions. Under the PDA, employers are
not, however, required to treat a pregnant employee more favorably than the employer would
treat a non-pregnant employee.
The sustained pace of pregnancy-related charges filed with the EEOC has lead some
commentators to allege an ongoing “maternal wall” that supports the glass ceiling for pregnancy
and motherhood. 3 The accommodation of pregnancy and pregnancy-related disabilities has
become a priority issue for the EEOC, which has stated its aim to curb the discriminatory
practice of forcing women to take unpaid leave as a result of an employer’s unlawful refusal to
provide accommodations otherwise available to similarly situated disabled employees. 4
This article reviews discrimination, leave, disability, and harassment issues as they relate
to pregnancy, parenting and careers, as well as recent federal decisions addressing these issues.
II.
PREGNANCY DISCRIMINATION AND NURSING MOTHER LAWS
A.
The Pregnancy Discrimination Act
The PDA was enacted by Congress in 1978 as an amendment to Title VII to clarify that
Title VII’s prohibition against sex discrimination includes discrimination because or on the basis
of pregnancy. 5 The PDA requires equal treatment of women affected by pregnancy, childbirth,
or related medical conditions in all aspects of employment, including hiring, firing, pay, job
assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and
1
See Mississippi bar settles suit alleging that it fired server due to pregnancy, CCH Employment Law
Daily Wrap Up, EEOC NEWS, February 19, 2013; See also Reed Pierce’s Pays $20,000 to Settle EEOC
pregnancy
Discrimination
Suit,
EEOC
Press
Release
available
at:
http://www.eeoc.gov/eeoc/newsroom/release/2-14-13.cfm (last visited March 4, 2013).
2
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 730 (2003) (“States continue to rely on invalid
gender stereotypes in the employment context, specifically in the administration of leave benefits.”). Women “get
hired on, get married and/or get pregnant and then they leave” and are therefore less committed to the employer and
its long-term vision and success See Black v. Pan Am. Labs., LLC, 646 F.3d 254, 260 (5th Cir. 2011). Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010). “Women are unsuited for the more remunerative
forms of manual labor and, once injured, are less resilient in their ability to recover.”Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010).
3
See, Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are
Discriminated Against on the Job, 26 Harv. Women's L. J. 77 (2003).
4
The EEOC Strategic Enforcement Plan FY 2013 – 2016 can be found on the EEOC’s website at:
http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited Jan. 31, 2013).
5
Pub. L. No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e-(k)).
1
any other term or condition of employment. The PDA bars employers from treating women who
are pregnant differently from others who are similarly able or unable to work.
According to the EEOC, an employer cannot refuse to hire a pregnant woman because of
her pregnancy, childbirth, because of pregnancy-related or childbirth-related medical conditions,
or because of the prejudices of co-workers, clients, or customers. 6 As noted above, in fiscal year
2012, the EEOC reported receiving 3,745 pregnancy discrimination complaints. This report
reflects a slight declining trend in the number of pregnancy discrimination complaints lodged in
recent years from 4,029 in 2010 to 3,983 in 2011 and to 3,745 in 2012. The number of
resolutions of pregnancy discrimination charges has vacillated somewhat in recent years, from
4,130 in 2010 to 4,590 in 2011 and finally to 4,225 in 2012.
Recent lawsuit filings highlight the seriousness of pregnancy-related claims. For
example, Forest Laboratories Inc. currently faces a $100 million lawsuit claiming that the
company engaged in systematic, companywide discriminatory treatment of female sales
representatives based on their genders, particularly with respect to women who are pregnant or
have children. The lawsuit has been filed as a proposed class action under Title VII and
collective action under the Equal Pay Act on behalf of approximately 1,500 current and former
sales representatives as well as a subclass of between 150 to 300 representatives who worked for
the company while pregnant. 7 It is also unlawful to retaliate against an individual for opposing
employment practices that discriminate based on pregnancy or for filing a discrimination charge,
testifying, or participating in any way in an investigation, proceeding, or litigation under Title
VII.
i.
Proof Issues
Because the PDA was enacted to extend Title VII’s protections, courts analyze pregnancy
discrimination claims in the same manner as Title VII sex discrimination claims. Like other
Title VII plaintiffs, an employee claiming pregnancy discrimination may prove her case under
either a disparate treatment or a disparate impact theory. Disparate treatment may be proven
with either direct or circumstantial evidence that pregnancy “motivated the employer’s adverse
employment decision”. 8
6
See 29 C.F.R. § 1604.10, app.; see also the EEOC website at http://www.eeoc.gov/laws/types/pregnancy.cfm (last
visited Jan. 24, 2013).
7
The defendant filed a motion to dismiss and/or strike the putative class definition on February 4, 2013. Barrett et
al. v. Forest Laboratories Inc. et al., No. 1:12-cv-05224 (S.D.N.Y. 2013).
8
Direct evidence: Arismendez v. Nightingale Home Health Care, 493 F.3d 602, 605 (5th Cir. 2007) (comment by
branch manager that, although she knew it was illegal to terminate plaintiff because of her pregnancy, she had a
business to run and could not handle having pregnant woman in office constituted direct evidence of pregnancy
discrimination); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (evidence that
supervisor questioned whether the plaintiff would be able to manage work and family responsibilities shortly before
termination supported finding of animus); Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999)
(reasonable jury could conclude that a supervisor’s statement to pregnant employee that she was being fired so that
she could “spend more time at home with her children” and that “would be happier at home with her children”
reflected unlawful motivations because it invoked widely understood stereotypes); Vance v. Union Planters Corp.,
209 F.3d 438 (5th Cir. 2000) (comments made by president responsible for hiring that he was looking to hire a
“mature man” and “the best guy” for the open position properly considered direct evidence of discrimination).
Circumstantial evidence: Venturelli v. ARC Cmty. Servs., 350 F.3d 592, 599 (7th Cir. 2003); Emmel v. Coca-Cola
2
Absent direct evidence of discrimination, an individual plaintiff may “proceed under a
‘pretext’ [indirect burden-shifting] framework” -- commonly referred to as the McDonnell
Douglas 9 approach -- “under which the employee, after establishing a prima facie case of
discrimination, demonstrates that the employer’s proffered permissible reason for taking an
adverse employment action is actually pretext for discrimination.” 10 Under this method, the
plaintiff has the burden of establishing a prima facie case of unlawful discrimination. To
establish a prima facie case, a plaintiff must show that (1) she is pregnant, or has indicated an
intention to become pregnant, (2) her performance has been satisfactory and she is qualified for
the position, but (3) the employer nonetheless took adverse employment action against her while
(4) a nexus exists between her pregnancy and the adverse employment action. 11 Establishing the
prima facie case raises a rebuttable presumption that discrimination sparked the adverse
employment action, and shifts the burden of production to the employer to put forward a
legitimate, nondiscriminatory motive for the action. If the employer clears this hurdle, the
presumption of discrimination vaporizes, and the plaintiff (who retains the ultimate burden of
persuasion on the issue of discriminatory motive) must then prove that the employer’s proffered
justification is a pretext for discrimination. 12
Employees may allege that employers have both legitimate and discriminatory reasons
for taking adverse employment actions. 13 The Supreme Court, in Price Waterhouse v. Hopkins,
held that where an employee demonstrates that a protected factor played a motivating role in the
adverse employment action, the burden shifts to the employer to prove that it would have made
the same decision even if it had not considered the prohibited factor. 14 Congress, however,
modified the mixed-motive method of proof by amending Title VII’s unlawful employment
practices section to state that “an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also motivated the
Bottling Co., 95 F.3d 627, 633-635 (7th Cir. 1996) (upholding jury verdict that employer had a discriminatory policy
of not promoting women to upper management positions based on direct and other circumstantial evidence). See
also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004).
9
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir.
1996), citing Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
10
Hill, 354 F.3d at 285.
11
See, e.g., Cline v. Catholic Dioceses, 206 F.3d 651, 658 (6th Cir. 1999).
12
Id., at 661-62. The disparate impact theory (also known as the indirect method) requires plaintiff to prove that the
defendant’s facially neutral policy has a disproportionately negative impact on women affected by pregnancy,
childbirth, or a related medical condition. To prove this negative impact, a plaintiff “must offer ‘statistical evidence
of a kind and degree sufficient to show that the practice in question has caused the exclusion of benefits because the
beneficiaries would be women.’” Once plaintiff has established a disparate impact, the defendant may still prevail
if it can prove that the impact is job related and caused by business necessity
13
Direct evidence is evidence that, if believed by the trier of fact, would prove the fact in question without reliance
on inference or presumption. Venturelli, at 599. Often called “smoking gun” evidence, this evidence often comes in
the form of an employer’s admission to taking a negative and/or discriminatory action or a facially discriminatory
policy. Where such direct evidence exists, the employer is only then able to escape liability where it can support its
decision with a bona fide occupational qualification for the position in question.
14
490 U.S. 228 (1989). Id. at 258. The plurality referred to the defendant’s burden in this analysis as a samedecision affirmative defense. Id. at 246. The Price Waterhouse standard of causation is best characterized as
motivating-factor causation for burden-shifting and but-for causation for liability.
3
practice.” 15 Congress also changed the “same-decision” defense from a complete bar to
plaintiff’s recovery to a limitation on the damages plaintiffs could recover. 16
In Wierman v. Casey’s General Stores, 17 the Eighth Circuit upheld summary judgment on
plaintiff’s Title VII discrimination claim because she did not show that the employer’s proffered
legitimate reasons for terminating her were a pretext. Wierman, a store manager, notified the
company that she was pregnant and took time off due to doctor’s appointments, morning
sickness, and pregnancy-related back pain. Her supervisor discovered that Wierman was coming
in late but not recording those incidents. He also discovered security camera footage of
Wierman taking items from store shelves without paying for them or properly ringing them up
(required even if her employee discount made the item free). Casey’s fired Wierman a few days
after she took time off for pregnancy related reasons. She sued for violations of Title VII, the
Missouri Human Rights Act (“MHRA”), and the FMLA. The court affirmed summary judgment
on the Title VII and FMLA claims. It found that Wierman failed to show that her tardiness and
violation of employee discount policy were pretexts for terminating her for being pregnant.
Specifically, she did not show that the employer or supervisor treated any comparable nonpregnant employee more favorably. The court remanded for determination of whether Wierman
had demonstrated a genuine issue of fact that her pregnancy was a contributing factor to her
termination for her MHRA claim.
ii.
Pattern and Practice Claims
To succeed on a pattern-or-practice pregnancy discrimination claim, plaintiffs must prove
“‘more than sporadic acts of discrimination; rather, they must establish that intentional
discrimination was the defendant’s ‘standard operating procedure.’” 18 In the liability phase of
15
See 42 U.S.C. § 2000e-2(m) (2006). On January 18, 2013, the U.S. Supreme Court granted certiorari to consider
whether the retaliation provision of Title VII, and similarly worded statutes that do not specifically authorize mixedmotive claims, require a plaintiff to prove “but-for” causation (i.e., that an employer would not have taken an
adverse employment action but for an improper motive), or instead required only proof that the employer had a
“mixed motive” (i.e., that an improper motive was one of multiple reasons for the employment action). Univ. of
Texas Southwestern Med. Ctr. v. Nassar, No. 12-484, 2013 U.S. LEXIS 911 (S. Ct. Jan. 18, 2013). Under a “but
for” causation requirement, if the employer can prove other legitimate and nondiscriminatory reasons for its actions,
it would not be found liable. See, e.g., Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (the “because of
[an] individual’s age” language in the ADEA requires a plaintiff to “prove that age was the ‘but-for’ cause of the
employer’s adverse decision”). Under a mixed motive theory, however, once plaintiffs prove that the improper
motive was a motivating factor in the adverse employment decision, the employer would be unable to avoid liability
by proving other legitimate nondiscriminatory reasons. However, a third option was recently created by the
California Supreme Court in Harris v. City of Santa Monica, a pregnancy discrimination case decided under the
California Fair Employment and Housing Act. No. S181004, 2013 Cal. LEXIS 941 (Cal. Feb. 7, 2013). In Harris,
the California Supreme Court ruled that plaintiffs must show that the complained of discrimination was a
“substantial factor motivating” the adverse employment action. In so holding, the California Supreme Court
rejected the “but-for” causation standard, and also explicitly ruled that California’s standard jury instruction for
discrimination claims (CACI No. 2500), which only requires a finding of a “motivating factor/reason,” was
erroneous. The Harris opinion appears to settle the California approach to mixed-motive cases into the middle
ground, requiring more than a mere “motivating factor,” but less than “but-for” causation.
16
See 42 U.S.C. § 2000e-5(g)(B) (2006). See also Harris, 2013 Cal. LEXIS 941, at *74 (if defendant can make a
“same-decision” showing, the employee is not entitled to monetary damages, back pay, or reinstatement).
17
638 F.3d 984 (8th Cir. 2011).
18
EEOC v. Bloomberg L.P. (Bloomberg II), 778 F. Supp.2d 458, 468 (S.D.N.Y. 2011) (quoting Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 336 (1977)).
4
such a case, plaintiffs must produce sufficient evidence to establish a prima facie case of a
policy, pattern, or practice of intentional discrimination against pregnant employees. 19 The
burden then shifts to the employer to demonstrate that plaintiffs’ proof “is either inaccurate or
insignificant”. 20 If the plaintiff succeeds in proving liability, the court may fashion classwide
injunctive relief, and in the remedial phase, individual plaintiffs may avail themselves of a
rebuttable presumption of discrimination in litigating a particular adverse employment decision
during the class period to obtain individual relief. A prima facie case of pattern or practice
discrimination often relies heavily on statistical evidence paired with “anecdotal evidence” that
“brings ‘the cold numbers convincingly to life.’” 21
A recent district court case highlights the importance of admissible statistical evidence
supporting a pattern and practice claim. In EEOC v. Bloomberg L.P. (Bloomberg II), 22 the
EEOC alleged that Bloomberg engaged in a practice of discrimination against employees who
were pregnant or recently returned from maternity leave. The EEOC sought to introduce expert
statistical evidence as well as anecdotal experiences of 78 claimants. The court held that the data
analyzed and introduced by the EEOC’s expert was irrelevant and unreliable and, therefore,
inadmissible. 23 As a result, on Bloomberg’s subsequent motion for summary judgment the court
relied solely on the anecdotal experiences proffered by the EEOC as well as the data provided by
Bloomberg’s expert. Based on this evidence, the court granted summary judgment, noting:
“J’accuse! is not enough in court. Evidence is required.” Acknowledging “the critical
importance of statistical evidence,” the court held that the EEOC’s mere anecdotes, standing
alone in the face of Bloomberg’s expert, were insufficient to raise a triable issue of fact. 24
In Velez v. Novartis Pharm. Corp., the jury found that the plaintiff class was subjected to
gender discrimination and awarded $250 million in punitive damages, the largest punitive
damages verdict ever in a gender discrimination lawsuit. 25 In Novartis, plaintiffs alleged that the
company engaged in gender discrimination and created a hostile working environment,
discriminated against women who took pregnancy leave, and retaliated against women who
complained. The district court certified a class of women who worked for the company in salesrelated positions. 26 With one exception, the court held that plaintiffs’ statistical and anecdotal
evidence raised sufficient common questions to satisfy the requirements of Rule 23(a) on the
issues of sex discrimination in pay, promotions, and treatment of women who took pregnancy
leave. The court did not, however, permit claims alleging discrimination in pay based on
pregnancy to move forward as class claims because the court felt that the plaintiffs’ could not
show that the company treated pregnancy leave different than other types of leave. The plaintiffs
19
Id. (citing, Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001).
Id. (citing Robinson, 267 F.3d at 159).
21
Id. (quoting Teamsters, at 339).
22
See supra, Bloomberg II.
23
EEOC v. Bloomberg L.P. (Bloomberg I), 07 CIV. 8383 LAP, 2010 U.S. Dist. LEXIS 92511, at *37-41 (S.D.N.Y.
Aug. 31, 2010).
24
Bloomberg II., at 472. The court also took issue with the EEOC’s anecdotal evidence and opined that the
evidence (1) indicated only a small portion of the class members had any claim; (2) did not compare the experiences
of class members to similarly situated employees; and (3) is of low probative value or quality in that it does not
support the EEOC’s assertions, amounts to ordinary business disagreements, or otherwise provides weak support
for a pattern or practice, as opposed to individual, claim.
25
See Velez v. Novartis Pharm. Corp., No. 04-cv-09194, jury verdict, (S.D.N.Y. May 17, 2010).
26
Velez v. Novartis Pharm. Corp., 244 F.R.D. 243 (S.D.N.Y. 2007).
20
5
were permitted to proceed with class claims alleging that the company discriminated against
women returning from pregnancy leave by denying them promotions, making hostile comments,
and subjecting them to stricter scrutiny.
In May 2010, the jury determined that Novartis engaged in a pattern or practice of
discrimination by: (1) paying women less than male employees; (2) failing to promote women to
first-level manager positions while promoting similarly situated men; and (3) treating pregnant
women unfavorably in the terms and conditions of their employment. 27 The jury awarded $3.3
million (ranging from $50,000 to over $500,000) in compensatory damages to the twelve named
plaintiffs. The jury also awarded to the entire class (over 5,000 women in sales jobs) $250
million in punitive damages. 28 Two months after the verdict the district court approved a final
settlement of the case for $175 million. 29 The monetary award includes $152.5 million in back
wages, benefits, and adjusted wages, service payments to named plaintiffs, and $38.1 million in
attorneys’ fees for class counsel and $2 million for litigation costs. Additionally, Novartis
agreed to devote $22.5 million in non-monetary relief to overhaul its human resources policies
and practices.
B.
Protections for Nursing Mothers
Nursing mothers have seen an increased protection in recent years. On March 23, 2010,
President Obama signed into law the Patient Protection and Affordable Care Act (“PPACA”),
Pub. L. No. 111-148 (2010). Section 4207 of this legislation is entitled Reasonable Break Time
for Nursing Mothers, and amended Section 7 of the FLSA to state that an employer shall provide
“a reasonable break time for an employee to express breast milk for her nursing child for 1 year
after the child’s birth each such time such employee has need to express the milk”. 30 The
legislation also requires employers to provide “a place, other than a bathroom, that is shielded
from view and free from intrusion from coworkers and the public” so that the nursing mother
may express the milk in private. 31 The only exclusion is for employers with fewer than 50
employees who can show that providing the break time “would impose an undue hardship by
causing the employer significant difficulty or expense when considered in relation to the size,
financial resources, nature, or structure of the employer’s business.” 32
On July 15, 2010, the DOL released “Fact Sheet #73: Break Time for Nursing Mothers
under the FLSA,” which interpreted the guidelines set forth in Section 207(r). However, the Fact
Sheet offered little clarification as to the meaning of “reasonable” as it relates to a “reasonable
break time” for an employee nursing to express milk or the number of breaks which an employee
should be able to take. 33 Instead, the Sheet simply provides that “[t]he frequency of breaks
27
See Velez, No. 04-cv-09194, jury verdict, (S.D.N.Y. May 17, 2010).
See Velez, No. 04-cv-09194, punitive damages jury verdict, (S.D.N.Y. May 19, 2010).
29
Velez, No. 04-9194, final approval of settlement (S.D.N.Y. Nov. 19, 2010).
30
See 29 U.S.C. § 207(r).
31
Id.
32
The Institute for Women’s Policy Research has predicted that from 2010 until 2016 an additional one million
mothers will benefit from the provisions in this act. See the Institute for Women’s Policy Research website:
http://www.iwpr.org. (last visited Feb. 7, 2013).
33
United States Department of Labor, Wage and Hour Division, Fact Sheet #73: Break Time for Nursing Mothers
under the FLSA (Revised December 2010), available at http://www.dol.gov/whd/regs/compliance/whdfs73.htm
(last visited January 23, 2012).
28
6
needed to express milk as well as the duration of each break will likely vary.” The Sheet also
explains that Section 207 does not apply to exempt employees, and thus, employers would not be
required to provide such breaks unless otherwise required under state law. Additionally, under
the DOL’s guidelines, employers are not required to compensate employees for breaks taken for
the purpose of expressing milk, but employers who already provide compensated breaks must
compensate an employee who uses those breaks to express milk in the same manner that other
employees are compensated for their breaks. Finally, the Sheet attempts to define the
requirement that an employer provide a place that is “shielded from view.” The Fact Sheet states
that an area complies with Section 207(r) if it is “a space temporarily created or converted into a
space for expressing milk or made available when needed by the nursing mother,” but that it
need not be dedicated to the needs of nursing mothers.
On December 26, 2012, in Miller v. Roche Surety & Casualty Co. et al., 34 the Eleventh
Circuit considered the FLSA’s reasonable “time” and “place” language but provided little
additional clarification. In Miller, Plaintiff claimed that her employer failed to provide a
reasonable time and private place to express breast milk, and subsequently terminated her
employment in retaliation after she asked for a time and place to do so. Roche Surety, however,
presented undisputed evidence that Plaintiff had been free to take breaks as needed, the breaks
were neither counted nor timed, and she was never criticized for taking a break. Plaintiff herself
testified that she received the necessary breaks to express breast milk. Roche also presented
evidence that Plaintiff had access to and was permitted to use vacant, nearby offices, but she
preferred to use her own office and would tape folders to the windows to facilitate her privacy.
Plaintiff identified an e-mail she sent to a supervisor asking for a time and place to express breast
milk as the complaint on which her retaliation claim rested. The district court granted Roche’s
motion for judgment as a matter of law and the Eleventh Circuit affirmed. Because Miller
testified that she had been given the necessary breaks for breastfeeding and she had access to a
private place to do so, her employer met its obligation under section 207(r)(1). The court also
opined that the e-mail Miller sent to a supervisor did not constitute a complaint under the FLSA,
because a prospective request for future compliance does not constitute a complaint. Miller
underscores the importance of communication with new mothers returning to the workforce
following the birth of a child regarding the availability of reasonable breaks and a private place
to express milk.
Twenty four states now have laws which, to varying degrees, provide protection to
nursing mothers in the workplace. 35 Many require employers to provide unpaid break time and
accommodations to enable nursing mothers to express breast milk at work. 36
34
No. 12-10259, 2012 U.S. App. LEXIS 26364 (11th Cir. Dec. 26, 2012).
These states include: Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine,
Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island,
Tennessee, Texas, Vermont, Virginia, Washington and Wyoming. In August 2007, for example, Governor Eliot
Spitzer signed into law the New York Nursing Mothers in the Workplace Act, N.Y. Lab. Law section 206-c,
requiring employers, regardless of the total number of employees, to provide employees who are nursing mothers
with breaks to express breast milk and to make reasonable efforts to offer employees a private location to do so.
The Act also prohibits employers from discriminating against employees who express breast milk in the workplace.
This protection extends for two years after the birth of the child. While granting broad protections to nursing
mothers, the Act leaves many of the specific requirements unclear. For instance, like the federal law, the Act
requires employers to allow an employee to take a “reasonable” paid or unpaid period to express breast milk for her
35
7
C.
Breastfeeding Discrimination
Breastfeeding and lactation discrimination has not been recognized as a protected
category under federal law. In EEOC v. Houston Funding II Ltd., 37 the court opined that
although “[d]iscrimination because of pregnancy, childbirth, or a related medical condition is
illegal,” wanting to pump breast milk and lactation are “not pregnancy, childbirth, or a related
medical condition.” 38 Therefore, “T]he law does not punish lactation discrimination [and f]iring
someone because of lactation or breast-pumping is not sex discrimination.”39
States, however, are able to provide additional and greater protections for breastfeeding
and lactation. In September 2012, California Governor Jerry Brown signed into law AB 2386
which amended California’s Fair Employment and Housing Act to make breastfeeding mothers a
“protected class of persons” in the context of employment starting in 2013. Specifically, it
amended Government Code § 12926 to include discrimination based on “breastfeeding or
medical conditions related to breastfeeding” to the definition of discrimination on the basis of
sex. This amendment guarantees breastfeeding mothers will have the same level of protection in
wrongful termination, hostile work environment, and other employment matters as now exists for
employees discriminated against on the basis of race, sex, religion, age, or disability.
III.
PREGNANCY LEAVE
A.
Leave under the PDA
Under the PDA, pregnant employees must be permitted to work as long as they are able
to perform their jobs. 40 Employer also may not prohibit employees from returning to work for a
predetermined length of time after childbirth. Mandatory maternity leaves and rules restricting a
new mother’s return to work date may constitute per se sex discrimination, and employers may
only defend such policies by showing that they constitutes a bona fide occupational
qualifications. 41 For voluntary maternity leave, however, both Title VII (as amended by the
nursing child for up to three years following the birth of the child. However, the statute does not define what would
be considered a “reasonable” period, which, again, could differ significantly from employee to employee. Likewise,
while employers must make “reasonable efforts” to provide employees with a private room “in close proximity to
the work area” in order to express breast milk, the statute fails to define what would be considered a reasonable
accommodation. However, early drafts of the statute stated that bathroom stalls or storage areas are unacceptable
locations.
36
On August 1, 2011, the Department of Health and Human Services issued guidelines pursuant to the PPACA that
will require insurers to provide breastfeeding supplies and counseling at no cost. See U.S. Dep’t of Health And
Human
Services
website
for
the
PPACA:
http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html. (last visited Jan. 31, 2012).
37
No. H-11-2442, 2012 U.S. Dist. LEXIS 13644 (S.D. Tex Feb. 2, 2012).
38
Id. at *3.
39
Id. at *4.
40
Many states have leave provisions which place additional leave obligations for employers. For example,
California provides up to four months of pregnancy-disability leave (“PDL”) per pregnancy, and that leave may be
taken on an intermittent basis. Cal. Gov’t Code § 12945(a).
41
See, e.g., Levin v. Delta Air Lines, Inc., 730 F.2d 994, 997 (5th Cir. 1984) (mandatory maternity leave policy for
flight attendant upheld where could found that many pregnant flight attendants will suffer severe or disabling
pregnancy-related problems that would prevent their assisting passengers to safety in emergency, and that
occurrence of such problems is unpredictable); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 677 (9th Cir.
1980) (“Pan Am has shown its Stop Policy to be ‘reasonably necessary’ to passenger safety” and so it is “justified as
a BFOQ”).
8
PDA) and the FMLA create obligations when an employee requests voluntary leave for the
purposes of pregnancy, childbirth, or parenting.
Under the PDA, pregnancy is not synonymous with disability and an employer is not
obligated to afford a reasonable accommodation to a pregnant employee. However, women
disabled by pregnancy or childbirth must be afforded the benefits and leave time available to
other temporarily disabled employees. For example, employers must hold open jobs for
pregnancy-related absences for the length of time jobs are held open for employees on sick or
disability leave.
Further, taking an adverse employment action against a pregnancy-disabled employee
based on an employment policy providing insufficient or no disability leave may leave the door
open to disparate impact claims. 42 On December 17, 2012, the EEOC released its Strategic
Enforcement Plan (“SEP”) that outlined the commission’s activities and priorities for 2013–
2016. 43 The SEP lists accommodating pregnancy-related limitations under the Americans with
Disabilities Act Amendments Act (“ADAAA”) and the PDA as a priority. Although employers
are not required to provide additional accommodations and treat pregnancy disability more
favorably than other disabilities under the PDA, they may choose to do so. 44 The PDA merely
created “a floor beneath which pregnancy disability benefits may not drop – not a ceiling above
which they may not rise.” 45
An employee seeking to return to work after a pregnancy leave must be treated the same
as other employees returning from voluntary or disability leaves. Employers are not required to
reinstate or rehire employees after maternity leave if the decision is based on a nondiscriminatory
reason. 46 Employers should exercise caution with these decisions as any temporal connection
may be argued as part of an employee’s indirect or circumstantial evidence of discrimination.
Any health insurance provided by an employer must cover expenses for pregnancyrelated conditions on the same basis as costs for other medical conditions. Health insurance for
expenses arising from abortion is not required, except where the life of the mother is endangered.
Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical
conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customarycharge basis. The amounts payable by the insurance provider can be limited only to the same
42
See 29 C.F.R. § 1604.10 (c) (2011); cf. In re Pan Am., 905 F.2d 1457, 1462-64 (11th Cir. 1990) (overturning, on
disparate impact grounds, policy requiring employees to return to work within 60 days after giving birth).
43
The EEOC Strategic Enforcement Plan FY 2013 – 2016 can be found on the EEOC’s website at:
http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited Jan. 31, 2013).
44
California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987)(upholding a state statute requiring
employers to grant pregnancy-disabled employees up to four months of unpaid leave with qualified reinstatement
rights).
45
Id. at 280.
46
See, McLaughlin v. W&T Offshore, Inc., 78 F.App’x 334 (5th Cir. 2003) (upholding summary judgment for the
employer where employee was terminated after taking maternity leave, because two employees who had taken over
plaintiff’s responsibilities, in addition to their own, could better perform the functions of the job). See also,
Reynolds v. Ethicon-Endo Surgery, Inc., 454 F.3d 868, 872 (8th Cir. 2006) (no PDA violation in pregnant
employee’s discharge where (1) job was eliminated in reorganization and (2) plaintiff declined lateral taransfers that
required relocation).
9
extent as amounts payable for other conditions. No additional, increased, or larger deductible
can be imposed.
Employers must provide the same level of health benefits for spouses of male employees
as they do for spouses of female employees. Pregnancy-related benefits cannot be limited to
married employees. In an all-female workforce or job classification, benefits must be provided
for pregnancy-related conditions if benefits are provided for other medical conditions.
B.
Leave under the FMLA
The FMLA provides that an eligible employee may take up to a total of 12 weeks of
unpaid leave during any 12-month period for qualifying reasons. 47 The FMLA’s requirements
apply to male and female employees equally. Where spouses are employed by the same
employer and wish to take FMLA leave for the birth or placement of a child, their aggregate
leave time may be limited to 12 weeks. 48
During the leave period, the employer must maintain the employee’s health benefits and
must guarantee the employee reinstatement to the same or an equivalent position upon
completion of the leave. The employee’s absence for a qualifying family and medical leave
purpose may not be considered as an absence under the employer’s disciplinary attendance
policies.
Under the FMLA regulations, a covered employer is defined as, “any person engaged in
commerce or in any industry or activity affecting commerce, who employs 50 or more
employees for each working day during each of 20 or more calendar workweeks in the current or
preceding calendar year.” 49 An eligible employee under the FMLA is one who:
i.
has been employed by the employer for at least 12 months;
47
29 U.S.C. § 2612(a)(1), (c). In California, the California Family Rights Act (“CFRA”), provides that leave taken
pursuant to the CFRA runs concurrently with FMLA leave. Gov. Code, §12945.2(p). California law requires
covered employers to allow women who are disabled by pregnancy, childbirth, or related medical conditions to take
a leave of absence for the period of their disability not to exceed four months. Cal. Gov’t Code § 12945(a). This
rule applies even if the employer’s temporary-disability policies otherwise provide less liberal leave of absence
provisions. 2 Cal. Code Regs. § 7291.7(a). The total amount of leave taken under either the FMLA or the CFRA or
both may never exceed 12 work weeks in a 12-month period. However, pregnancy-disability leave is not counted
against the CFRA leave entitlement. According to the regulations, where an employee has taken up to the full 4month entitlement of pregnancy-disability leave, she would also be entitled to up to 12 workweeks of CFRA leave
because of the birth of the child, if the child has been born by then. 2 Cal. Code of Regs. § 7297.6(c). See also
Sanchez v Swissport, Inc, No. B237761, 2013 Cal. App. LEXIS 131 (Cal. Ct. App. Feb. 21, 2013) (allegations of
complaint sufficient to state a prima facie case of discrimination, even though employer terminated plaintiff only
after she exhausted all permissible leave available and she failed to return to work as a result of pregnancy: the
“plain language” of the leave statute makes clear that its remedies augment, rather than supplant, those set forth
elsewhere in the FEHA).
48
29 U.S.C. § 2612(f); 29 C.F.R. § 825.202 (2911).
49
29 C.F.R. § 825.104.
10
ii.
has been employed for at least 1,250 hours of service during the 12-month
period immediately preceding the commencement of the leave; 50 and
iii.
is employed at a work site where 50 or more employees are employed by
the employer or within 75 miles of that work site. 51
Of particular note for pregnancy-related leave, FMLA leave may be taken for one or
more of the following reasons:
i.
for the birth of a son or daughter and in order to care for the newborn
child;
ii.
for the placement with the employee of a son or daughter for adoption or
foster care;
iii.
to care for the employee’s spouse, son, daughter or parent with a serious
health condition. 52
For leave related to birth or placement of a child, an employee is required to give notice
of the need for leave:
i.
at least 30 days in advance for leave that is foreseeable such as an
expected birth, placement for adoption or foster care, or planned medical
treatment for a serious health condition of the employee or of a family
member, or the planned medical treatment for a serious injury or illness of
a covered servicemember; or
ii.
as soon as practicable where 30 days advance leave is not possible, which
ordinarily would mean at least verbally notifying the employer the same
day or the next business day of when the need for leave becomes known to
the employee;
iii.
except in extraordinary circumstances where such notice is not feasible,
notice should be provided to the employer as soon as it may be
accomplished as a practical matter, taking into the account the exigencies
of the situation. 53
50
See Donnelly v. Greenburgh, 691 F.3d 134 (2d Cir. 2012) (it is the employer’s burden to prove FMLA
ineligibility due to failure to meet the FMLA’s 1,250 hours in a 12-month period threshold).
51
29 C.F.R. § 825.110.
52
29 C.F.R. § 825.112. The definition of “son or daughter” under the FMLA includes not only a biological or
adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29
U.S.C. § 2611(12). The FMLA regulations define in loco parentis as including those with day-to-day
responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3).
53
29 C.F.R. §§ 825.302, 825.303.
11
Employees are not required to mention the FMLA specifically when requesting leave. 54
However, the employee must provide a reason for the absence so as to allow the employer to
determine whether the leave qualifies under the Act. 55 An employee must also comply with an
employer’s “usual and customary notice and procedural requirements for requesting leave,”
unless unusual circumstances preclude him or her from doing so. 56 For example, an employer
may require an employee to contact a specific individual or that a written notice set forth the
reasons for the requested leave, the duration of the leave, and the anticipated start of the leave. 57
An employee’s failure to give notice as required by the employer’s leave policy may result in the
denial or delaying of an employee’s leave request. However, when the need for leave is
unforeseeable, indirect notification to the employer has been recognized as acceptable. 58
In Pereda v. Brookdale Senior Living Cmty.,59 the Eleventh Circuit held that an employee
can establish an FMLA retaliation claim for a pre-eligibility request for post-eligibility leave.
Pereda had notified her employer early in her pregnancy that she was pregnant and would be
requesting FMLA leave in approximately six months when her baby was due to be born and
when she would be FMLA eligible. Pereda alleged that her employer then began to harass her
and discipline her for using sick, vacation and personal days for doctors’ appointments. Pereda’s
doctor then placed her on bed rest and she was fired several days later. Pereda sued alleging
FMLA retaliation and interference. The district court granted the employer’s motion to dismiss
because Pereda was not eligible for FMLA leave at the time she requested it. The Eleventh
Circuit, however, reversed holding that, because the FMLA requires advanced notice to the
employer, “employees are protected from interference prior to the occurrence of a triggering
event, such as a birth of a child.” Because Pereda was protected by the FMLA, she could state a
cause of action for interference and retaliation.
As a general rule, FMLA leave is unpaid. However, where an employee has earned or
accrued paid vacation, sick leave, personal leave or paid family leave under an employer’s
54
29 C.F.R. § 825.303(b); Dotson v. Pfizer Inc., 558 F.3d 284 (4th Cir. 2008) (as long as employee asks for leave
for an FMLA-covered purpose, it is up to the employer to determine whether the leave should be designated as
FMLA-protected), cert. denied, Pfizer Inc. v. Dotson, 130 S. Ct. 114 (U.S. 2009).
55
Compare, Nicholson v. Pulte Homes Corp., et al., 690 F.3d 819 (7th Cir. 2012) (casual references about
challenges of dealing with aging parents and their medical conditions do not put an employer on adequate notice that
FMLA-qualifying leave is needed), with Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.2d 294 (3d Cir. 2012)
(employee notifying her employer that she would not be at work because her mother was in the emergency room
provided enough information to put the employer on inquiry notice that the FMLA may be implicated and obligated
the employer to request additional information).
56
Although the most recent regulation removed the former requirement that an employee notify the employer of the
need for FMLA leave within two days of the first absence, the Seventh Circuit recently held that the regulations that
apply in this situation are those that are contemporaneous with the events in question. Brown v. Auto. Components
Holdings LLC, 622 F.3d 685 (7th Cir. 2010). In Brown, the court determined that the employee lacked an FMLA
claim because she failed to notify her employer within two working days after learning about her need for extended
leave.
57
29 C.F.R. § 825.302(d); see also DOL Opinion Letter FMLA 2009-1-A (Jan. 9, 2009) (employee who must
notify an employer of an unforeseen need for leave is permitted by the FMLA to give “such notice as is practicable,”
but the employee is not guaranteed an allowance of a particular number of days within which to provide the notice).
58
See Millea v. Metro-North Railroad Company, 658 F.3d 154 (2d Cir 2011) (leave policy requiring supervisor
notification for unforeseen leave was contrary to the FMLA; 29 C.F.R § 825.303(a) permits notice to be given by
third party and here, employee notified co-worker who in turn notified supervisor).
59
666 F.3d 1269 (11th Cir. 2012).
12
family leave plan, that paid leave may be substituted for all or part of any otherwise unpaid
FMLA leave, at the employee’s or the employer’s option. Under the new regulations, all forms
of accrued paid leave are treated the same. Moreover, if the employer’s sick leave policies allow
for the use of sick leave to care for a family member with a serious health condition, the
employee may substitute (or the employer may require that the employee substitute) such paid
leave for otherwise unpaid FMLA leave where the leave is required to care for a family member
with a serious health condition. In practice, this means that employees may substitute their own
paid sick leave to care for a family member only where the employer’s plan condones such a use
of sick leave. 60 When an employee chooses, or an employer requires substitution of paid leave,
the employer must inform the employee of the procedural requirements of the paid leave policy
that the employee must satisfy. 61
If the employer does not require the substitution of paid leave and the employee does not
elect to substitute paid leave for unpaid FMLA leave, the employee remains entitled to all such
accrued leave. 62 If an employee uses paid leave under circumstances that do not qualify as
FMLA leave, the leave will not count against the employee’s FMLA leave entitlement. 63
While the employee is on FMLA leave, he or she is entitled to continuation of health
insurance. An employer “must maintain the employee’s coverage under any group health
plan…on the same conditions as coverage would have been provided if the employee had been
continuously employed during the entire leave period.” 64 Employees are therefore entitled to the
same health benefits they had prior to taking FMLA leave. If the employer unilaterally changes
the health coverage, employees on FMLA leave are entitled to all the changes made during their
leave. 65 Employees on FMLA leave must also be given the identical opportunities to change
benefits or plans as employees in the employer’s workforce. 66
The FMLA provides that leave may be taken intermittently 67 or on a reduced-leave
schedule, 68 but not where leave is taken for child care after a birth or adoption, in which case the
employer’s approval is required for intermittent or reduced leave.
The FMLA permits an employer another option when faced with a request for an
intermittent or reduced-leave schedule. The employer can require the employee to transfer
temporarily to an alternative position in the company for which the employee is qualified if:
(1)
the pay and benefits are equivalent; and
60
29 C.F.R. § 825.207(a).
Id.
62
See id. § 825.207(b).
63
Id. § 825.207(c).
64
Id. § 829.209(a).
65
Id. § 825.209(c).
66
Id. § 825.209(d).
67
The regulations define intermittent leave as “leave taken in separate blocks of time due to a single qualifying
reason.” Id. § 825.202(a).
68
The regulations spell out that a reduced leave schedule is “a schedule that reduces an employee’s usual number of
working hours per workweek, or hours per workday” or changes an employee’s time schedule “normally from full
to part time.” Id. 825.202(a).
61
13
(2)
the temporary position better accommodates the recurring periods of leave
than the employee’s regular position. 69
The regulations clarify that time spent performing “light duty” work does not count
against an employee’s FMLA leave entitlement and that reinstatement rights are also not affected
by a light duty assignment. 70
Generally, employees returning from leave must be restored to the same position or an
“equivalent” position with equivalent pay, benefits, and other terms of employment, and with no
detriment sustained because of the absence. 71 The regulations require the new position to
involve the same or substantially similar duties and responsibilities involving substantially
equivalent skill, effort, responsibility, and authority. 72 The regulations further state that if “the
employee is unable to perform the essential functions of the position because of a physical or
mental condition, including the continuation of a serious health condition or an injury or illness
also covered by workers’ compensation, the employee has no right to restoration to another
position under the FMLA.” 73 In this case, the employer’s obligations may, nonetheless, be
governed by the ADA, state leave laws, or workers’ compensation laws.
The right to be restored to the same or an equivalent position does not apply to “key
employees” (the highest paid ten percent of employees) if the denial is necessary to prevent
substantial and grievous economic injury to the operations of the employer. 74 Moreover, an
employer may deny reinstatement to an employee who fails to provide a fitness-for-duty
certificate upon return to duty. 75 Employers can require a “fitness for duty” certification if the
employer has a uniformly-applied policy or practice that requires all similarly situated employees
who take leave for their own serious health conditions to obtain and present certification from
their healthcare providers that they are able to resume work. 76 The regulations permit employers
to request an examination that determines whether an employee can perform the essential
functions of his or her specific job. 77 Specifically, an employer may include a list of essential
job duties and require the certification to indicate whether the employee is able to perform those
functions. In addition, if reasonable job safety concerns exist, the employer may also require a
fitness-for-duty certification before the employee returns to work after taking intermittent
leave. 78
An employee who would have been fired or laid off anyway is not entitled to
reinstatement under the FMLA. 79 According to the DOL and three circuit court of appeals, the
employer bears the burden of proving that an employee would have been laid off during the
69
70
71
72
73
74
75
76
77
78
79
Id. § 825.204.
Id. § 825.220(d).
29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214.
29 C.F.R. § 825.215.
Id. § 825.216(c).
Id. §§ 825.216(c), 825.217(c).
Id. § 825.216(c).
29 C.F.R. § 825.312(a).
Id. § 825.312(b).
Id. § 825.312(f).
Id. § 825.216(a)(1).
14
FMLA leave period. 80 The Fifth, Sixth, and Seventh Circuit Courts, however, have disagreed
and held that the regulations are not intended to shift the burden of proof from the general rule
that plaintiff bears the burden of proving an FMLA violation. 81 There is a two-year statute of
limitations for FMLA violations unless the violation is willful, in which the case the limitations
period is three years. 82
An employee who establishes an FMLA violation is entitled to compensatory damages
equal to back wages or salary, employment benefits, other lost compensation and interest on the
compensatory damages. 83 An employer is only liable for damages caused “by reason of the
violation.” 84 Unless the court concludes that the employer acted in good faith and reasonably
believed it complied with the Act, the employee may be entitled to liquidated damages equal to
the amount of lost compensation or monetary losses plus interest. 85 The employee is also
entitled to such equitable relief as may be appropriate, including reinstatement and promotion.86
Reasonable attorney’s and expert witness fees as well as costs are also recoverable. 87
In Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, 88 the Eleventh Circuit
held that a plaintiff must show her pregnancy leave was the “proximate cause” of the loss of
compensation and benefits, not just the “but-for” cause. Accordingly, the drug company did not
violate the FMLA by demoting a female vice president on her return from pregnancy leave,
because the employer proved the demotion was based on performance issues unrelated to the
protected leave. The court also rejected the employee’s argument that because the company
discovered some of her alleged performance deficiencies while she was on leave, their decision
to demote her was “caused” by her protected leave and therefore violated the FMLA, finding that
reasoning to be legally incorrect and logically unsound. The court stated that “the statute’s
purpose is not implicated in the least if an employee’s absence permits her employer to discover
past professional transgressions that then lead to an adverse employment action against the
employee.” In such a case, according to the court, “the employer would be motivated not by the
taking of leave itself, but rather by prior deficiencies that, whenever they were discovered, would
have prompted demotion or discharge whether or not the employee took FMLA leave.”
80
Id; See Throneberry v. McGehee Desha County Hosp., 403 F.3d 972 (8th Cir. 2005), Smith v. Diffee FordLincoln-Mercury, Inc. 298 F.3d 955 (10th Cir. 2002), and O’Connor v. PCA Family Health Plan Inc., 200 F.3d 1349
(11th Cir. 2000).
81
See Grubb v. Sw. Airlines, 296 F.App’x 383 (5th Cir. 2008) (defendant’s burden of offering a legitimate and nonretaliatory reason for its action is a burden of production, not proof), cert. den’d, 129 S. Ct. 1986 (U.S. 2009); Arban
v. West Publ’g Corp., 345 F.3d 390 (6th Cir. 2003), and Rice v. Sunrise Express, 209 F.3d 1008 (7th Cir. 2000).
82
See 29 U.S.C. § 2617(c)(1)-(2).
83
29 U.S.C. § 2617(a)(1)(A)(i)(I).
84
Id.
85
29 U.S.C. § 2617(a)(1)(A).
86
Id. § 2617(a)(1)(B). Front pay may be awarded in lieu of reinstatement.
87
29 U.S.C. § 2617(a)(3).
88
602 F.3d 1236 (11th Cir. 2010).
15
IV.
PREGNANCY-RELATED
TEMPORARY
REASONABLE ACCOMMODATIONS
A.
DISABILITY
AND
Pregnancy as an Impairment
Pregnancy itself has not traditionally been considered an impairment such that it would
qualify as a disability. The ADA Amendments Act of 2008 (“ADAAA”), however, significantly
expanded the scope of protection available to individuals under the ADA, eliminated several
employer defenses to ADA claims, and made it much easier to show that a medical condition is a
covered disability. “Disability” is now defined under the ADA as:
(A)
a physical or mental impairment that substantially limits one or more major life
activities of [an] individual;
(B)
a record of such an impairment; or
(C)
being regarded as having such an impairment. 89
A pregnancy-related impairment (for example, gestational diabetes or preeclampsia, a
condition characterized by pregnancy-induced hypertension and protein in the urine) could
qualify as a disability under any one of the three prongs of the ADA’s disability definition. 90
The legal analysis proceeds in three steps. First, the court determines whether the
plaintiff has an “impairment.” Next, the court determines whether the plaintiff has claimed a
legitimate “major life activity.” Finally, the court analyzes whether the plaintiff’s impairment
“substantially limits” the major life activity. The ADAAA details a non-exhaustive list of what
constitutes a major life activity, stating that in general such activities are, but are not limited to,
“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 91 The EEOC regulations issued in 2011 add to this nonexhaustive list “sitting, reaching,…[and] interacting with others.” 92
In Spees v. James Marine Inc., 93 the Sixth Circuit held that that pregnancy-related
conditions can be impairments under the ADA where they are not part of a “normal pregnancy,”
and an increased risk of having a miscarriage constitutes an impairment falling outside the range
of a normal pregnancy.
89
42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(h), app. Under California law, the definition of disabled by pregnancy
has also expanded. Previously, a woman was “disabled by pregnancy” if she was unable to perform one or more of
the essential functions of her job, or was unable to perform one of these functions without undue risk to herself, her
pregnancy’s successful completion, or other persons. The regulations now provide a non-exhaustive list of
conditions that may render an employee “disabled by pregnancy”: severe morning sickness, needing time off for
prenatal or postnatal care, bed rest, post-partum depression, gestational diabetes, pregnancy-induced hypertension,
preeclampsia, childbirth, loss or end of pregnancy, and recovery from childbirth, loss or end of pregnancy.
90
29 C.F.R. § 1630.2(h), app.; see also Serednyj v. Beverly Healthcare LLC 656 F.3d 540 (7th Cir. 2011) (medical
complications resulting from pregnancy can create a disability under ADA).
91
42 U.S.C. § 12102(2)(A).
92
29 C.F.R. § 1630.2(i)(1)(i).
93
617 F.3d 380 (6th Cir. 2010).
16
B.
Accommodation for Pregnancy
If an employee is temporarily unable to perform her job due to pregnancy, childbirth, or
related medical conditions, the employer must treat her in the same as any other temporarily
disabled employee. For example, if the employer allows temporarily disabled employees to
modify tasks, perform alternative assignments, take disability leave, or leave without pay, the
employer also must allow an employee who is temporarily disabled due to pregnancy to do the
same. If employers grant leave or other fringe benefits in the event of disability, they must make
benefits available on the same basis for pregnancy disability as for any other disability, including
for accrual and crediting of seniority, vacation calculation, pay increases, and temporary
disability benefits. 94 Pregnancy or childbirth-related related medical conditions may include
cramping, dizziness, and nausea while pregnant.
In Young v. UPS, the Fourth Circuit reaffirmed the notion that the PDA does not require
companies to provide preferential treatment to pregnant workers. In so holding, the court held
that UPS was not required to offer reasonable accommodation for pregnancy-related conditions
that are not also provided for non-pregnant employees. 95 Plaintiff, a package delivery driver,
argued that UPS was required to offer her a light duty position after her doctor recommended
that she not lift more than twenty pounds. UPS’s policy, however, only accommodated drivers
(1) who suffered on-the-job injuries; (2) who were disabled under the ADA; or (3) lost their
DOT certification to drive. UPS, therefore, denied her request for a light-duty assignment.
After filing a claim with the EEOC and receiving a right to sue letter, Young filed suit
claiming, among other things, that she was disabled under the ADA and that UPS violated her
rights under Title VII, as amended by the PDA, by refusing to accommodate her request for a
light-duty assignment. The district court agreed with UPS, and held that Plaintiffs’ claim under
the ADA failed, because she could not establish the existence of a disability under pre-ADAAA
law, and that the company’s policy did not discriminate against Young, because its policy was
based on “gender-neutral,” “pregnancy-blind” criteria, such as whether an employee was injured
on the job. The Fourth Circuit affirmed and held that the PDA only requires that a pregnant
employee be treated the same as a similarly disabled non-pregnant employee. Plaintiff was not
similarly situated to the comparator employees, and therefore UPS was under no obligation to
accommodate her light-duty request.
Young is of limited use to employers seeking a defensible accommodations policy going
forward under the ADAAA. Before the ADAAA, the definition of a disabling impairment was
far more onerous. The ADAAA, however, greatly expanded the definition of “disability,” and
the interpretations of the Equal Employment Opportunity Commission indicate that a for a 20pound lifting restriction as well as a temporary condition that lasts more than six months could
now be considered “disabling.” Therefore, even though reasonable accommodations are not
94
In California the Fair Employment and Housing Act (“FEHA”) goes even further than Title VII, requiring that
even if an employer does not otherwise provide benefits to employees who are temporarily disabled, it must
nevertheless allow a female employee disabled by pregnancy a reasonable unpaid leave not exceeding four months,
at the end of which she must be returned to her former position, or a substantially similar position, unless there are
compelling business reasons why such a position is no longer available. Cal. Gov’t Code § 12945(b)(2); cf.,
Williams v. MacFrugal’s Bargains—Close Outs, Inc., 67 Cal. App. 4th 479 (1999) (hysterectomy, performed several
years after childbirth, was not medical condition “related” to pregnancy or childbirth under FEHA).
95
No. 11-2078, 2013 U.S. App. LEXIS 530 (4th Cir. Jan. 9, 2013).
17
required per se for pregnancy, if an employer offers reasonable accommodations to non-pregnant
employees with disabilities, the employer should consider whether it must do the same for the
pregnant employees as well.
In a similar case, the Seventh Circuit in Serednyj v. Beverly Healthcare LLC 96 affirmed
summary judgment for an employer, holding that a policy that provided light-duty work
accommodations for work-related injuries only did not violate the PDA because it treated
pregnant and non-pregnant employees alike. The Seventh Circuit pointed out that the PDA
creates no new rights or remedies, but clarifies the scope of Title VII by recognizing that certain
inherently gender specific characteristics may not form a basis for disparate treatment. The court
pointed out that the PDA requires that an employer ignore an employee’s pregnancy and treat
that employee the same as it would have if she were not pregnant. In the context of this case, the
court stated that “this means that an employer is not required to provide an accommodation to a
pregnant employee unless it provides the same accommodation to its similarly situated nonpregnant employees.” The court rejected Serednyj’s arguments that Beverly’s modified work
policy was direct evidence of discrimination because the policy in fact treated non-pregnant
employees the same as pregnant employees – both were denied the accommodation of light duty
work for non-work related injuries. Finally, the court noted that Serednyj could not identify any
similarly situated, non-pregnant employee who had been treated more favorably than she had
been and affirmed the District Court’s grant of summary judgment on gender and pregnancy
discrimination claims.
At least one court has firmly rejected a plaintiff’s claim that her status as a breast-feeding
mother rendered her "disabled". Bond v. Sterling Inc, 997 F.Supp. 306 (1998) (N.D.N.Y. 1998)
(rejecting claim under state law: “It is simply preposterous to contend a woman's body is
functioning abnormally because she is lactating.”)
V.
PREGNANCY-RELATED HARASSMENT
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition
related to pregnancy or childbirth. Donaldson v American Banco Corp., Inc., 945 F.Supp. 1456,
1462 (D. Colo. 1996) (alleging extensive harassing comments, including "You look like you
could squirt that baby out today!"; "You look like you're going to give birth to an elephant!";
"Are you still breast feeding, Virginia? You smell like curdled milk"; "You should get some
clothes that fit, Virginia, you still look like you're pregnant, you're not are you?"; "God, Patty,
seems like you've been pregnant forever. Are you ever going to have that baby?"). See also
www.eeoc.gov for the EEOC’s views (“What are some examples of harassment based on
pregnancy?” “Pregnancy harassment involves unwelcome conduct in the workplace that is
related to pregnancy. The conduct may be physical, verbal, or written. The harasser can be male
or female. The harasser can be your supervisor, a supervisor in another area, a co-worker, or
someone who does not work for your employer, such as a client or customer. Pregnancy
harassment can include offensive or derogatory comments, jokes, gestures, graffiti, cartoons, or
pictures related to pregnancy.”)
96
656 F.3d 540 (7th Cir. 2011).
18
19