Obligations Absent Clear Court Guidance Drafting Policies to Avoid - - PowerPoint PPT Presentation

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Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance

Drafting Policies to Avoid Discrimination Claims Under the PDA, ADA and State Laws

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JULY 15, 2015

Presenting a live 90-minute webinar with interactive Q&A Alexis C. Knapp, Shareholder, Littler Mendelson, Houston Christina A. Stoneburner , Partner, Fox Rothschild, Roseland, N.J. Philip R. Voluck, Managing Partner - Pennsylvania Office, Kaufman Dolowich & Voluck, Blue Bell, Pa.

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ACCOMMODATING PREGNANT WORKERS AFTER YOUNG V. UPS

NAVIGATING NEW OBLIGATIONS ABSENT CLEAR COURT GUIDANCE Strafford CLE July 15, 2015 Webinar

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Christina A. Stoneburner, Partner (New Jersey) Fox Rothschild (973) 994-7551 cstoneburner@foxrothschild.com Philip R. Voluck, Managing Partner (Pennsylvania) Kaufman Dolowich & Voluck (215) 461-1100 pvoluck@kdvlaw.com Alexis C. Knapp, Shareholder (Texas) Littler Mendelson, PC (713) 652-4706 aknapp@littler.com

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TODAY’S AGENDA

• Young v. UPS, 575 US __ (2015), WL 1310745
• 2015 EEOC Enforcement Guidance.
• Pregnancy Discrimination Act (“PDA”).
• Americans with Disabilities Act, as amended

(“ADA”).

• State and Local Protections.
• Questions and (Hopefully) Answers.

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YOUNG v. UPS

575 US __ (2015)

• Appellant with P.R.C. requested light duty.
• UPS policy granted light duty only to those injured on the job,

those with disabilities, and those who failed DOT medical examinations.

• Courts sided with UPS, validating its policy as “pregnancy blind”.
• U.S. Supreme Court GRANTED CERT. despite Solicitor General’s

Amicus Brief touting “imminent” EEOC Guidance.

• Circuit Courts split.

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CIRCUIT COURTS SPLIT

• Fourth, Fifth, Seventh, Eleventh Circuits.

– No light duty for off the job injuries.

• Sixth, Tenth Circuit.

– PDA provides additional protection.

• Third, Eighth Circuit.

– Not unlawful under the PDA to take an adverse employment action against a pregnant employee.

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THE SUPREME COURT’S (NON) DECISION

• Remand To 4th Circuit.
• 6-3 (Breyer).
• Requested McDonnell

Douglas burden-shifting analysis.

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2015 EEOC ENFORCEMENT GUIDANCE

• Originally issued two weeks after Young v. UPS certiorari was granted

(July 2014)

• Addresses ADA, PDA, GINA and more
• Follows ADA analysis.
• Expands protections for pregnant workers.

– “Regarded As” Being Pregnant. – Covers Current, Past, Potential or Intended Pregnancy & Abortion.

• Explicitly rejected as not binding by Supreme Court in Young v. UPS.
• New guidance issued by EEOC after decision (June 25, 2015)—

available at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm

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PREGNANCY DISCRIMINATION ACT (“PDA”)

• Amended Title VII in 1978 to prohibit sex discrimination on the

basis of pregnancy.

• The term “pregnancy” includes pregnancy, childbirth, or

medical conditions related to pregnancy or childbirth, including recovery from childbirth.

• Women affected by pregnancy, childbirth, or related medical

conditions shall be treated the same for all employment-related purposes.

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AMERICANS WITH DISABILITIES ACT, AS AMENDED (“ADA”)

• Recent changes to the ADA
• Pregnancy related conditions can be

“disabilities” within the meaning of the ADA.

• Sample accommodations:
• 1. Allowing a pregnant worker to take more

frequent breaks.

• 2. Keeping a water bottle at a work station.
• 3. Use of a stool.
• 4. Alter how job functions are performed.
• 5. Receive a temporary assignment to a light

duty position.

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PREGNANCY RELATED CONDITIONS (“P.R.C.s”)

• Employers are expected to accommodate P.R.C.s.
• Conditions can include back pain, preeclampsia (pregnancy-

induced high blood pressure), gestational diabetes, complications requiring bed rest, the after-effects of delivery, and any other related disability that substantially limits one or more major life activity, construed broadly.

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CONCERNS ABOUT SAFETY AND ABILITY TO PERFORM THE JOB

• No adverse action based on safety concerns, such as

involuntarily moving a pregnant employee to a less stressful (perhaps, lower compensated position).

• Banning fertile women from jobs with exposure to harmful

chemicals is also prohibited.

JOB LEAVE

• An employer may not compel an employee to take leave

because she is pregnant, as long as she is able to perform her job (though leave remains one form of reasonable accommodation)

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LIGHT DUTY

• An employer is required to treat an employee

temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work.

• Evidence of other workers similar in their ability or

inability to work who are given light duty.

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LACTATION DISCRIMINATION

• Lactation is a P.R.C.
• Protections under the FLSA.

– 1) Reasonable break time to express milk. – 2) In a place other than a bathroom. – 3) For up to 1 year since the child’s birth.

• State Protections.
• Don’t forget the FLSA.

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“POTENTIAL” FOR PREGNANCY

• According to the EEOC, Title VII “prohibit[s] an employer from

discriminating against a woman because of her capacity to become pregnant.”

• May get pregnant, undergoing infertility treatments, use

contraceptives.

• No inquiries into intentions relating to starting a family.

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NEW FATHERS

• Parental leave must be provided to similarly situated

men and women on the same terms.

• If an employer provides leave to mothers for bonding
• r caring for a newborn beyond the time necessary for

the mother to recuperate from the delivery, the employer must provide the equivalent amount of leave to new fathers for the same purpose.

• Adoption?

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CAREGIVERS

• Caregivers are not a protected class under the pregnancy

discrimination laws, but discrimination against workers with caregiving responsibilities may be actionable .

– Example: denying job opportunities to women, but not men, with young children, or reassigning due to assumption that a new mother will be less committed to her job.

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HARRASSMENT

• Examples of pregnancy-based harassment:

– Unwelcome and offensive jokes or name-calling – Physical assaults or threats – Intimidation, Ridicule – Offensive objects or pictures – Interference with work performance motivated by pregnancy, childbirth,

• r breastfeeding
• Pregnancy-Related Comments as Direct Evidence of

Discrimination.

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STATE AND LOCAL PROTECTIONS

• 45 States now have laws for pregnancy

accommodations, with many going beyond the federal requirements.

• Other Jurisdictions:

– New York City: ERs with 4 or more EEs must reasonably accommodate an employee’s needs relating to her pregnancy, childbirth or related medical condition, absent employer undue hardship.

New York, N.Y., Int. No. 974-A (Oct. 2, 2013).

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STATE & LOCAL PROTECTIONS CON’T.

– Philadelphia: ERs with at least 1 (non-family member) EE must reasonably accommodate upon the employee’s request, absent employer undue hardship.

Philadelphia, Pa., Code §§ 9 1102(h), 9-1128 (2014).

– New Jersey: All ERS must make reasonable accommodation to a female employee affected by pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from child birth, when she requests accommodation based on advice of her physician, absent employer undue hardship.

N.J. Stat. Ann. § 10:5-12(s) (2013).

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STATE & LOCAL PROTECTIONS CON’T.

– Florida: Florida Human Rights Act (FL Stat. Sec. 760.01et seq.). covers ERs with 15 or more EEs and prohibits employment practices that discriminate

• n the basis of marital status and sex.
• The state Supreme Court has ruled that the Act includes protection

against discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex. (Delva

• v. The Continental Group, Inc., No. SC12-2315 (4/17/14)).

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LOOKING FORWARD

• More state and local protections.
• Greater scrutiny of workers’ compensation

light duty programs and other light duty programs

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BEST PRACTICES

• 1. Educate/train supervisor and managers.
• 2. Review policies to ensure compliance.

– E.g. Handbooks, CBA’s.

• 3. Treat pregnant employees the same as other

employees similar in their ability/inability to work.

• 4. INTERACTIVE PROCESS.

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