Bringing Up Baby: An Increase in Pregnancy Issues at Work Mary Funk Direct Number: (515) 283-8029| E-Mail: mef@nyemaster.com 700 Walnut St., Suite 1600| Des Moines, IA 50309 | (515) 283-3100   Attorneys at Law | Offices in Des Moines, Ames and Cedar Rapids www.nyemaster.com ©2015 Nyemaster Goode, P.C.

The EEOC: Pregnancy Issues and the Strategic Enforcement Plan One of the six national priorities identified in Strategic Enforcement Plan (SEP) is litigating "emerging or developing issues" One such "emerging or developing issue" is "accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act" (SEP, Part III.B.3)

More Pregnant Women in the Workforce 50 years ago – 11% of women were primary breadwinners for their families; Today, its 40% Today, women comprise half of the workforce and increasingly continue to work while pregnant, often through later stages of pregnancy. 1970: Mean age at first birth was 21.4. Compare to 2007: Mean age at first birth was 25.

1961-1965 2006-2008 44% of first-time mothers worked during pregnancy, and 13% of them stopped work during their first trimester. 35% of first-time mothers who worked during pregnancy worked into their final month. 66% of first-time mothers worked during pregnancy, and only 6% of them stopped work during their first trimester. 82% of first-time mothers who worked during pregnancy worked into their final month.

EEOC Claims Rising 46% increase in pregnancy claims filed with EEOC from 1997 to 2011 In FY2011, there were 5,797 claims. 12.8% settled; 8.5% withdrawn; 15.7% administratively closed; 58.9% no probable cause; 4.1% probable cause $17.2 million recovered in benefits for complainants.

Pregnancy Discrimination Act (PDA) Title VII, as amended by the PDA, prohibits sex discrimination based on the following: Current Pregnancy Past Pregnancy Potential or Intended Pregnancy Medical Conditions Related to Pregnancy or Childbirth (complications requiring bed rest, gestational diabetes, after-effects of C-Section, etc.) Covers all aspects of pregnancy and all aspects of employment -- hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant persons similar in their ability or inability to work.

EEOC Guidelines Released July 14, 2014 Discusses when employer actions may constitute unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA); Identifies the obligation of employers under the PDA to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits; and

Explains how Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA and was amended in 2008 to broaden the definition of disability, applies to individuals with pregnancy-related impairments.

Closer look at 2008 Amendments to ADA No requirement that an impairment last a particular length of time to be considered substantially limiting Major life activities that may be affected by impairments related to pregnancy - walking, standing, and lifting – also includes operation of major bodily functions such as reproductive systems (pregnancy itself is not a disability) Reasonable accommodations must be considered

Disability? Pregnancy is not a disability Pregnancy-related conditions may be considered disabilities under the ADAAA Pregnant employees can have impairments related to the pregnancy that substantially limit a major life activity The fact that the impairment was caused by the pregnancy is irrelevant, as is the fact that it may be temporary. Pregnancy-related anemia, carpel tunnel, sciatica Disorders of the cervix leading to bed rest Severe nausea leading to dehydration Swelling due to limited circulation

Reasonable accommodations… Redistributing non-essential functions Modifying standing, climbing, lifting or bending requirements Modifying workplace policies Modifying work schedules Granting leave Temporarily assign to light duty position

Light duty Employers must provide light duty for pregnant workers if it provides light duty for employees who are not pregnant, but who are similar in their ability or inability to work.

Equal Access to Light Duty Work ADA injury/illness pregnancy Disability 20# lifting restrictions due to a bad back Light duty provided Not a disability in and of itself 20# lifting restriction related to pregnancy Light duty not provided

Equal Access to Light Duty Work ADA injury/illness pregnancy Limits Number of light duty positions available Limits how long light duty may be available Medical verification required Limits Number of light duty positions available Limits how long light duty may be available Medical verification required

Leave Cannot FORCE pregnant employee to take leave. Must allow leave on same terms as others based on inability or ability to work. Difference between MEDICAL leave related to pregnancy and bonding or parental leave Parental leave must be available to fathers too In Iowa, employers must grant leaves due to disabilities resulting from the employee's pregnancy, miscarriage, legal abortion, childbirth, or recovery there from for the period of disability or eight weeks, whichever is less

Insurance Health insurance must include coverage of pregnancy, childbirth and related medical conditions. Same terms and conditions for pregnancy-related costs and costs not related to pregnancy Contraceptives covered on same basis as other prescription drugs and devices Coverage for abortion not required except where life of mother is at risk

Patient Protection and Affordable Care Act (“PPACA”) Took effect on March 23, 2010, amended Section 7 of the FLSA. Required to provide reasonable time to express milk during the first 12 months of the child’s life for non-exempt employees Frequency may vary; duration of each break may vary Unpaid Must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public Employers with fewer than 50 employees may be exempt IF can show undue hardship

Noteworthy Cases

Deboom v. Raining Rose, Inc. President and Chairman of the Board asked plaintiff if she planned to return to work after a pregnancy or whether she was going to “be like all those other women who find it's this life-altering experience and decide to stay home.” Favorable feedback prior to leave. Told plaintiff they were eager to have her back. Fired her three weeks after she returned because she “was no longer a good fit.”

Pregnancy Discrimination The plaintiff must demonstrate: she was pregnant; she was qualified for her position; and her termination occurred under circumstances giving rise to an inference of discrimination.

“New Mom” is not a protected class status. Plaintiff was required to show only that sex or pregnancy played a part in her discharge, not that her sex or pregnancy tipped the scales decisively.

Young v. UPS Pregnant UPS driver; doctor recommended hiatus from lifting heavy boxes until after birth Not more than 20#; UPS required ability to lift 70# for her job as a driver Company routinely provided accommodations to other workers temporarily unable to perform their regular tasks because of on-the-job injuries, disabilities covered by the ADA, or loss of their CDLs Denied light duty work because not a work-related injury

Without light duty, she lost her job, and thus, her health insurance. Sued under the PDA – failed to treat pregnant employees the same as non-pregnant employees with work-related injuries Lost twice in courts in Maryland Appealed to US Supreme Court; the child is now 8!

PDA states: “…women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes. . . as other persons not so affected but similar in their ability or inability to work . . . ."

Young argued she was "similar in [her] inability to work" as someone who pulled her back while lifting a package on the job. She argued that the law means what it says, i.e., the person who injures her back on the job and needs temporary light duty is in a situation no different than hers and thus cannot be treated differently.

UPS countered that the term "other persons" in the law was more limited, referring only to workers who were in Young's situation -- i.e., those whose disabling condition occurred off the job. Using that standard, it treated Young the same as it would treat a worker who pulled her back lifting her infant child. Both could be denied light duty because they were injured off the job.

UPS Reversal of Policy… In October 2014, UPS issued memo to employees that beginning January 1, 2015, company will offer light duty to pregnant workers as well as those employees who are hurt on the job In its Supreme Court Brief, the company explained it this way, “While UPS’s denial of [Young’s] accommodations request as lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments. Claim it was a result of the EEOC guidelines

US Supreme Court March 25, 2015 The majority agreed with Young that generally an employer shouldn't be allowed to treat a pregnant worker differently than a non-pregnant worker. The Court agreed with UPS that "other workers" does not mean that an employer must apply the same benefits to a pregnant worker as it provides to any other worker in the company; only those who are in similarly situated jobs with a similar ability (or inability) to work.

So the Court struck a compromise finding that an employer could not treat a pregnant worker differently than a non-pregnant work unless the employer had a good non-discriminatory reason. What constitutes a legitimate, non-discriminatory reason for treating pregnant and non-pregnant workers differently? Cost savings and inconvenience alone normally are not sufficient. Reserving light-duty jobs for employees injured on the job may be ok, primarily because of the sense of responsibility and obligation to an employee injured on the employer's premises.

The Young Court eviscerated the EEOC's Enforcement Guidance on Pregnancy Discrimination, refusing to "significantly rely" on the Guidance because the: Guidance was issued after the Court accepted certioriari in Young. Guidance was inconsistent with prior government positions. EEOC did not explain the basis for the Guidance. STAY TUNED…..

McQuistion v. City of Clinton Plaintiff, a firefighter, alleged defendants engaged in sex and pregnancy discrimination against her in violation of the Iowa Civil Rights Act when she was not permitted to perform light-duty assignments during her pregnancy. McQuistion did not have a problem pregnancy; her request for light duty based solely on her job and the fact that she was pregnant; not any underlying medical condition related to pregnancy Co-workers who were injured on the job were given “light duty” as part of the city’s attempt to reduce its workers' compensation costs; she wanted the same.

Employees who were injured OFF the job, were not given light duty. City determined that “light duty” was only available to those employees who were injured on the job. Since McQuistion did not have a disabling injury that occurred on the job, the City determined she was not eligible for a light duty assignment. McQuistion had her baby, returned to work and filed suit. Court granted City’s motion for summary judgment.

Followed federal precedent from Young case. On December 24, 2015, the Iowa Supreme Court the affirmed in part and denied in part, the lower court’s grant of summary judgment in favor of the City… Followed federal precedent from Young case. The Court held that the ICRA only requires that pregnant employees be treated the “same” as “other persons” in “similarly situated” jobs with a similar inability to work.  Pregnant employees are NOT granted “most favored nation” status. Ok to have policies that offer light duty only to employees injured on the job; apply even-handedly.

Let’s get practical…. Review policies Train managers and employees Light duty Medical excuses/restrictions Lactation Train managers and employees Review relevant statutes, like the PDA, ADAAA and FMLA Respond to complaints of pregnancy discrimination and protect against retaliation Determine process for considering reasonable accommodation requests

Credits National Women's Law Center, Fact Sheet: The Pregnant Workers Fairness Act: Making Room for Pregnancy on the Job (June 2013), available at http://www.nwlc.org/sites/default/files/pdfs/pregnantworkersfairnessfactsheet_w_bill_number.pdf U.S. Census Bureau, Maternity Leave and Employment Patterns of First-Time Mothers 1961-2008, 4, 6 (Oct. 2011), available at http://www.census.gov/prod/2011pubs/p70-128.pdf EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) released on July 14, 2014 available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.