Let’s start this column with a series of hypotheticals.
Hypothetical No. 1: Karen tells her supervisor she is pregnant. During her pregnancy, Karen is absent several days due to an illness unrelated to her pregnancy. Later, pregnancy complications require Karen be out of the office for a couple of additional days.
When Karen returns to work, her supervisor says she needs someone who will not have ongoing attendance problems and the following day terminates Karen. Karen’s overall attendance record was comparable to other non pregnant employees. Discrimination?
Hypothetical No 2: Susan, who is visibly pregnant, applies for an open position in the organization. The interviewer tells her that July-September are the company’s busiest months and asks whether she will be available to work during that time period.
Susan says she is scheduled to deliver in mid August, but intends to work right up to her delivery date.
The interviewer says the company needs someone who can be available during the peak period and as a result cannot offer her the new position. Discrimination?
Hypothetical No. 3: Linda, the CFO, who already has two children, tells her manager she is trying to get pregnant again. Her manager questions whether another child might interfere with her job duties. Several weeks later, her supervisor demotes her to a lower paying job with no supervisory responsibilities claiming she has been unable to effectively delegate tasks effectively.
Thus far, Linda’s performance evaluations have been outstanding with no mention of any such concerns. Discrimination?
Hypothetical No. 4: Juanita requests light duty due to her pregnancy. Despite the fact there are light duty positions available that a pregnant employee could perform, her supervisor denies the request. Discrimination?
The Equal Employment Opportunity Commission (EEOC) contends each of these hypotheticals constitute examples of pregnancy discrimination.
In June, the EEOC issued updated enforcement guidelines regarding an employer’s obligations when dealing with pregnant employees.
As a refresher, the federal Pregnancy Discrimination Act (PDA) and the Washington State Law against Discrimination (WLAD) prohibit discriminating against pregnant women, including women who desire or intend to become pregnant. Simply stated it is illegal for an employer to treat a woman differently because she is pregnant or indicates a intent to become pregnant.
A pregnant employee is entitled to maternity leave for the “actual period of disability,” which, in most cases, without complications, extends for 6-8 weeks following delivery. The employee is also entitled to be reinstated to the same position, if the employee desires to return to work following maternity leave.
Because pregnancy is sometimes considered a disability, if the pregnancy results in any restrictions being placed on the employee’s ability to perform her job (such as lifting or other restrictions), the employer is required to consider how it might reasonably accommodate any such restrictions, which could include providing light duty for the employee.
Earlier this year, the U.S. Supreme Court held that, under certain circumstances, an employer may need to consider providing light duty for pregnant employees if the employer provides light duty to other employees with some sort of disability.
In 2014, almost 30 percent of the discrimination claims filed with the EEOC alleged some form of pregnancy or sex discrimination.
As hiring begins to pick up nationwide, employers should be particularly mindful to treat all employees with respect, and to avoid stereotyping or making assumptions about the capabilities of pregnant employees.
Gil Sparks is Of-Counsel for Ogden Murphy Wallace, PLLC, and has over 26 years representing employers on employment and labor law matters and has over 16 years of senior human resources experience.