Photo: Governor Charlie Baker (Public Domain)

Last week, Governor Baker signed the Pregnant Workers Fairness Act into law, which guarantees greater protections for pregnant women and nursing mothers in the workplace.  The bill had unanimously passed in both the House and Senate.  The law prohibits employers from discriminating against an employee because of pregnancy or the need to express breast milk for a nursing child and from denying these employees a reasonable accommodation when it would not cause the employer undue hardship.

Please click here for a more detailed discussion of the law.

The law will take effect on April 1, 2018.  Employers should start reviewing their current policies now in order to make the necessary revisions to comply with the law.

On July 5, 2017 Washington became the latest state to enact some form of paid family and medical leave. The new law goes into effect in January 2020 and will provide employees with up to twelve (12) weeks per year of paid family leave for the following purposes:

• The employee’s own serious health condition;
• Care of a family member with a serious health condition;
• Care of a child new to the family following birth, adoption or placement in foster care; or
• For qualifying exigencies due to a family member’s deployment to active duty in the US Armed Forces. Continue Reading Washington State is Latest to Enact Paid Family Leave Legislation

Photo: TipsTimesAdmin via Flickr (CC by 2.0) - tipstimes.com
Photo: TipsTimesAdmin via Flickr (CC by 2.0) – tipstimes.com

Earlier this week, Massachusetts House of Representatives voted unanimously to pass An Act Establishing the Massachusetts Pregnant Workers Fairness Act, a law that would guarantee greater protections for pregnant women and nursing mothers.  The legislation prohibits employers from discriminating against an employee because of “pregnancy or a condition related to pregnancy,” which is defined to include the need to express breast milk for a nursing child.  It also prohibits employers from denying pregnant women and nursing mothers reasonable accommodations if requested by the employee unless it would impose an undue hardship upon the employer.  The bill provides the following examples of such reasonable accommodations: Continue Reading Massachusetts House Passes Legislation to Protect Pregnant and Nursing Mothers in the Workplace

On June 25, 2015, the Equal Employment Opportunity Commission (“EEOC”) updated its Enforcement Guidance: Pregnancy Discrimination and Related Issues to make it consistent with the decision in Young v.United Parcel Service, Inc. (UPS), the most recent U.S. Supreme Court case on pregnancy discrimination.

The Young court analyzed under what circumstances the Pregnancy Discrimination Act (“PDA”) requires an employer to provide work accommodations it provides to non-pregnant employees to pregnant employees who are “similar in their ability or inability to work.”

Before Young v. UPS, the EEOC’s interpretation of the PDA was that it  required employers to treat pregnant workers with work limitations more favorably compared to non-pregnant employees  with work limitations  due to reasons other than pregnancy. Based on this interpretation, the EEOC previously advised in its guidance:

[A]n employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).

In Young , the U.S. Supreme Court rejected the EEOC’s guidance  and held that the PDA does not grant pregnant workers a “most-favored-nation” status. You can read more about the case in a summary of Young v. UPS written by Attorney Stevens.

The majority of the guidance remains unchanged, and only the portion that was criticized by the Young court was amended. While the changes  should come as no surprise to those  who followed Young , below are the sections that were rewritten:

  • Section I.A.5. Persons Similar in Their Ability or Inability to Work
    • This section was deleted in its entirety
  • Section I.B.1. Disparate Treatment
    • The guideline regarding how to prove a violation of the Pregnancy Discrimination Act was revised consistent with Young.
    • A new example of evidence indicating disparate treatment based on Young was added.
  • Section I.C.1. a. Disparate Treatment (Formerly “a. Disparate Treatment: Pregnancy-Related Comments as Direct Evidence of Discrimination”)
    • This section, which pertains to disparate treatment involving light duty, was significantly rewritten to reflect the holding of Young and is worth taking the time to read.

Although the Court in Young  rejected the EEOC’s literal interpretation of the PDA,  an employer may still be found to have violated the PDA if its seemingly nondiscriminatory, harmless work accommodation policy poses a significant burden on pregnant workers. Therefore, employers  should review their workplace accommodation policies to  assess  whether the administration of such policies may result in unfair treatment of pregnant workers.

The US Supreme Court on March 25, 2015 decided the case of Young v. United Parcel Service, Inc.(UPS).  The issue in the case was whether, and in what circumstances, the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), requires an employer which provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

Photo: TipsTimesAdmin via Flickr (CC by 2.0) - tipstimes.com
Photo: TipsTimesAdmin via Flickr (CC by 2.0) – tipstimes.com

UPS offered  a “light duty program” to workers who were injured on the job, were disabled under the Americans with Disabilities Act (ADA) or had lost their Department of Transportation certifications.  UPS, however, did not provide any such accommodations to pregnant employees who were not disabled. Young challenged the policy arguing that the PDA requires an employer to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances.    

Young worked as a  part-time driver for UPS where her responsibilities included pickup and delivery of packages. She had suffered several prior miscarriages so when she became pregnant, her physician limited her to lifting 20 pounds during the first 20 weeks of her pregnancy and 10 pounds thereafter.  Her normal job requirement was that she be able to lift parcels weighing up to 70 pounds herself and 150 pounds with assistance.  UPS did not allow Young to work under this restriction resulting in her staying out of work without pay for most of her pregnancy and ultimately losing her health insurance benefits.  Young filed suit, and UPS responded by saying that other employees which had been accommodated fell within one of the three categories referenced above; and since Young did not, there had been no discrimination.

The Fourth Circuit Court of Appeals sided with UPS and ruled that: (1) the employer did not “regard” a pregnant employee as disabled under the Americans with Disabilities Act (ADA); and (2) employers are not required under the PDA to provide pregnant employees with light duty assignments so long as the employer treats pregnant employees the same as non-pregnant employees with respect to offering accommodations.  That court further referred to UPS’ policy as “pregnancy blind” showing no discriminatory animus toward pregnant workers.

The Supreme Court reversed the decision and remanded the case back to the trial court to allow Young to pursue her claim.  The Court, refusing to accept the interpretation of the PDA espoused by either party, concluded that once an individual pregnant worker like Young made a prima facie showing of discrimination “by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII.”  In Young’s case this meant showing that she belonged to the protected class, that she sought accommodation, that the employer did not accommodate her, but did accommodate others “similar in their ability or inability to work.”  Thereafter, the employer must justify its refusal to accommodate the employee based on “legitimate, non-discriminatory” reasons.  The fact that the accommodation might be expensive or inconvenient for the employer is not necessarily sufficient justification.  Even once the employer presents its justifications, the employee has an opportunity to show that the reasons offered are pretext for discrimination.

The Court concluded that Young had created a sufficient factual issue regarding whether UPS provided more favorable treatment to non-pregnant employees in situations which could not be distinguished from hers to allow her to take her case to a jury.

Based on this decision employers should review their policies surrounding accommodation for pregnant and non-pregnant employees to insure that there is no unjustifiable disparate treatment occurring.

Photo Credit: La Citta Vita via Flickr (CC by SA 2.0)
Photo Credit: La Citta Vita via Flickr (CC by SA 2.0)

In one of his last official acts as governor, Deval Patrick signed into law the new Massachusetts Parental Leave Act.  The new law, which goes into effect on April 7, 2015, expands the current Massachusetts Maternity Leave Act to cover male employees as well as females.  The new law also makes several other significant changes that employers will need to be mindful of.

The current Maternity Leave Act, which effects Massachusetts employers with six or more employees, allows eligible female employees to take up to eight weeks of leave (paid or unpaid at the discretion of the employer) for the purpose of giving birth or adopting a child.  The new Parental Leave Act makes leave available to male employees as well.  This change to the law comes as no surprise to many who saw the expansion of leave benefits to men as inevitable.  The MCAD has long held the view that the Maternity Leave Act’s provision of leave for women and not men was inconsistent with Massachusetts’s antidiscrimination law.

But beyond expanding leave benefits to men, the Parental Leave Act includes several other significant changes:

  • The Act softens the employee’s obligations for providing notice of an intent to take leave. The current law states that the employee “shall give at least two weeks’ notice to the employer of the anticipated date of departure.”  The new law allows employees to provide notice “as soon as practicable” in situations where two weeks’ notice in not possible for reasons beyond the employee’s control.
  • Couples who work for the same employer will not be allowed to “stack” their leave under the Act. Any two employees of the same employer are entitled to a maximum of eight weeks in aggregate for the same child.
  • New language in the statute also overrides a 2010 decision of the Massachusetts Supreme Judicial Court which held that the Maternity Leave Act’s protections did not apply to women who took more than eight weeks off, even with the employer’s approval. Under the new law, employers who allow more than eight weeks of parental leave cannot deny reinstatement unless they notify employees clearly in writing, before the start of the leave, that taking more than eight weeks will result in denial of reinstatement or loss of other rights and benefits.
  • Currently, employers are required to provide notice of the provisions of the Maternity Leave Act in establishments in which females are employed. Under the new law, employers will be required to conspicuously post notice of the Act, as well as notice of the employer’s policies relating to parental leave.

 

The Equal Employment Opportunity Commission (” EEOC”) on July 14, 2014 issued an Enforcement Guidance on Pregnancy Discrimination   The document, which was not published for public comment prior to its release, purports to provide guidance regarding the Pregnancy Discrimination Act (“PDA”) and the Americans With Disabilities Act (“ADA”) as it applies to pregnant workers.  The fact that the EEOC issued this guidance is not surprising given its inclusion of pregnancy discrimination as one of the priorities outlined in its Strategic Enforcement Plan.  This is the first such guidance issued by the EEOC since 1983.

The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC’s position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA.  This particular issue is also the subject of acase recently accepted by the United States Supreme Court, Young v. UPS.

Other highlights of the guidance include the following:

-The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended  pregnancy, and medical conditions related to pregnancy or childbirth.

– Employment decisions based on a female employee’s use of contraceptives may constitute unlawful discrimination based on gender and /or pregnancy. Employers can also violate Title VII , by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.

– There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.

– Title VII, as amended by the PDA, requires employers to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. Liability can result from the conduct of a supervisor, coworker or non-employee, such as a customer or business partner over whom the employer has some control.

The guidance also contains the EEOC’s recommended best practices for avoiding unlawful discrimination against pregnant workers and those otherwise covered by the PDA. For the most part, the guidance is consistent with existing law, but certain provisions, particularly those related to the use of contraceptives and providing accommodation to all pregnant employees regardless of disability status, are likely to stir up controversy and require future examination by the courts.