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Pregnancy Discrimination Act

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Lesson:

Pregnancy Discrimination Act

  • Course: Employment Law 101
  • Module: Discrimination
  • Lesson Type: Video
  • Lesson Duration: 9:27

Lesson Content

Pregnancy discrimination really it arose as a question after Title VII was enacted. Title VII had five basis for protection, saying an unlawful employment practice is when an employee discriminates based upon race, color, religion, sex, or national origin.

And in Title VII, really, the question became Is discriminating against an employee based upon her pregnancy, a form of sex discrimination.? Well, that came up first in the Supreme Court case in 1976 of General Electric Company versus Gilbert. And in the Gilbert case the issue was a health plan that GE wanted to start utilizing. And this particular health plan had a provision that excluded pregnant employees, or issues relating to pregnancy. So the question became, is that policy a form of discrimination against pregnant employees? The court ultimately found that the health plan did not violate Title VII, it was not a form of sex discrimination which that covered and the justice who authored that opinion later became the chief justice and that was William Rehnquist. And his analysis, ultimately, said that being pregnant was voluntarily undertaken and desired, and that they were making the decision. And it relied on a prior opinion that said that when only pregnant women or non-pregnant persons were involved, then there wasn't gender discrimination, in other words, it wasn't based upon gender because women include both pregnant and non-pregnant women.

So the bottom line is that the Supreme Court said that pregnancy discrimination did not equate to sex discrimination, and the Congress did not like that opinion at all. They ultimately responded by creating the Pregnancy Discrimination Act of 1978. The Pregnancy Discrimination Act was ultimately enacted to make sure that employers knew that Congress viewed pregnancy discrimination as a form of sex discrimination. And the Pregnancy Discrimination Act amended Title VII and is now part of that jurisprudence.

So the PDA, the Pregnancy Discrimination Act, forbids discrimination on pregnancy when it comes to any aspect of the employment relationship. So it could be promotions or training or benefits, or any other term of employment. The challenge is that, now that we can't discriminate against pregnant employees which is fine and good and proper, how do we manage pregnancy in the work place? And many businesses started to develop maternity leave policies and questions started to arise as to how that would be managed? Pregnant employees have to be permitted to work as long as they're able to perform. Frequently, I run into situations where employers make the decision to start curtailing or cutting back schedules as an employee's pregnancy goes further and further along. And the reasons vary from fear that the fetus will get hurt to generally scheduling issues and trying to plan for maternity time off and so having to adjust staff. It's very important for employers to know that the pregnant employee must be permitted to work as long as they're able to perform the essential duties of the job. Now, if they've been absent from work as a result of the pregnancy then you can't have her remain on leave until the baby's birth. In other words if for some reason there's a condition that creates complications and creates absences, if at some point the employee wants to come back to work prior to having the baby, you have to permit her to do so. You also can't have a rule that says that the pregnant employee can't return to work for a certain period of time after the child has been born.

So all of those are based upon the ability of the employee to continue to do work in the workplace. Couple of other laws that affect this the Family and Medical Leave Act provides protection for employees that have serious health conditions in the workplace. And that the FMLA looks at and actually explicitly deals with the idea of families having new children whether they be born to the family or whether they be adopted or foster children. Ultimately, the Family Medical Leave Act provides 12 weeks per year of unpaid leave to care for a new child. And, do that's important. It's also important to note that not all this is qualified for FMLA. The employees within those businesses not all of them qualify for FMLA they have to be working at least 12 months prior to taking leave for that employer. And the employer has to have 50 employees within a 75 mile radius. So there's certain parameters for determining the applicability of FMLA in these circumstances and of course, if it applies then you must comply with the parameters of the FMLA. The FMLAs a very difficult law to comply with. It's a very complicated law. So it's important for employers to know whether or not they need to aware of that.

What about temporary disabilities? Well, pregnancy is a temporary condition usually, standard pregnancies. And if they're temporarily unable to perform their job then they have to be treated just like any other temporarily disabled employees. So if you have policies to provide for light duty or alternate assignments or what not and the employee is unable to perform her regular duties because of her pregnancy, then have to treat her like you would treat other employees that have conditions which prevent them from performing their particular position. And so those accommodations have to be made.

Under this act an employer that allows temporarily disabled employees to take leave, ultimately, must allow pregnant employees to take leave and that's the bottom line. Okay. If you have a job for that pregnant employee you have to hold it open just as long as you would for other sick or temporally disabled employees. So holding jobs open and letting people have time off and making workplace accommodations are very similar for pregnant employees as other temporarily disabled employees.

Now, what about ADA? The ADA is the Americans with Disabilities Act. t deals with disabilities. Pregnancy generally is not considered a disability, it's considered a temporary condition. But you can have complications or impairments that qualify as a disability. Now, if you have a situation where you have a disability related to the pregnancy and it does not create an undue hardship, then you may have to be providing whatever reasonable accommodations are necessary to help that employee.

So, for example, an employer may be required to provide modified duties for an employee who has a lifting restriction, say 15, 20 pounds. And so those types of lifting restrictions If that employee were to have, say, sciatica or problems with their back because of the pregnancy unless you can demonstrate that that's unduly harsh on the business, then those types of restrictions should be and likely would be put in place under the ADA.

Okay, another kind of caveat, in 2008, the ADA was amended. And the ADAAA, or the ADA Amendments Act ultimately makes it very easy for a medical condition to be covered under a disability. Moreover, there's a presumption that if an employee has a disability, that the business must reasonably accommodate it. So the bottom line is with pregnancy if you have a situation where you can reasonably accommodate it, it's kind of a backwards way to get there, but the bottom line is the most conservative and prudent course is to do all you can as an employer to try to accommodate that employee's wishes.

Mark Addington

Instructor:

Mark Addington

Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...

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