Pregnancy Discrimination

Beranbaum Menken Files Pregnancy Discrimination Lawsuit

Tiffany Kantrowitz, a Procter & Gamble ("P&G") employee, sold Dolce and Gabbana beauty products at a makeup counter at Saks 5th Avenue in Manhattan.  When she became pregnant in October 2014, she began to have brief spells of nausea and dizziness.  P&G repeatedly thwarted her requests to simply sit down for a few minutes while working while she waited for her symptoms to pass.  In the months after P&G became aware that she was pregnant, it became clear that P&G refused to accommodate her because it did not want a pregnant women selling its beauty products.  P&G eventually terminated her for storing "tester" items in a company-provided clear plastic bag--a practice that was commonplace and accepted among Ms. Kantrowitz's peers. On April 18, Beranbaum Menken filed a lawsuit on Ms. Kantrowitz's behalf in federal court, alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 1981A, the American with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008, and the New York City Human Rights Law.

This case has been reported on by a number of media outlets.  A recent in-depth article discusses Ms. Kantrowitz's case in the context of the challenges working pregnant women face nationwide.

SUPREME COURT LEAVES (MOST) PREGNANCY ACCOMMODATION CASES TO THE JURY

Getting pregnant and raising children isn’t something American employment law does much to encourage. The right to pregnancy leave is a meager 12 weeks and only covers larger employers, and, alone among industrialized nations, is unpaid. The pay disparity between men and women is largely the product of women being penalized for taking time off for having children, and discrimination against parents is rampant. Our ruling class views having children as a personal luxury, rather than as ensuring the future of humanity. However, in a bit of good news, the Supreme Court today leveled the playing field a bit in favor of pregnant workers. In Young v. United Parcel Service, the Court had to decide if the Pregnancy Discrimination Act (PDA), 42 U.S.C. §2000(e)(k), requires an employer to provide pregnant employees with the same light-duty options that it supplies to other employees who require light duty for other reasons. Peggy Young, a UPS driver, needed light duty because of her pregnancy. UPS had a practice of giving temporary light duty to employees who needed an accommodation of a disability under the Americans With Disabilities Act (ADA) and in a few other instances (remember, a normal pregnancy is not protected under the ADA). But, UPS’ policy was not to give light duty to pregnant employees, despite the PDA’s requirement that employers treat “women affected by pregnancy...the same for all employment-related purposes..as other persons not so affected but similar in their ability or inability to work.”

A clear and simple decision in this case would have been that if an employer gives disability accommodations to some employees, it must give them to pregnant employees. However, the majority recoiled from the idea that pregnant employees be always treated just as well as those other, fortunate employees who may enjoy accommodations - that would be granting “most-favored-nation” status to pregnant employees, and just wouldn’t do. According to the Court, there is no way that Congress intended to put pregnant employees at the top of the heap as far as access to job accommodations goes. Perhaps the Court is right.

However, the Court took a position that, practically speaking, will still entitle pregnant employees to at least most of the accommodations offered to their fellow employees. The Court held that a pregnant employee claiming discrimination in access to light duty or other job accommodations can get to a jury if she can show that “the employer’s policies impose a significant burden on pregnant workers” and that the employer’s “legitimate, nondiscriminatory” reasons for doing so are not strong enough to justify the burden. What constitutes a “significant burden” or strong enough (allegedly) nondiscriminatory reason will surely keep the district and circuit courts busy for years to come. But the Supreme Court today made it a lot harder for employers to get summary judgment on a pregnancy discrimination claim, and that’s good news for everybody.

Do Employers Have to Give Pregnant Women Accommodations? EEOC Issues New Guidance and SCOTUS Takes Up New Case

Pregnant women working in New York City have a right to receive a workplace accommodation, such as more frequent bathroom breaks, rest breaks for workers who stand, help with manual labor, or a period of recovery from childbirth. But pregnant women in the rest of the state – and most of the country – aren’t so lucky. Hopefully, that’s changing. The U.S. Equal Employment Opportunity Commission (“EEOC”) just issued a Guidance that’s a step in the right direction. While the guidance isn’t new law, it is significant and has persuasive power in court.

Why is this issue so complicated? Why aren’t pregnant women protected under current federal law? Because there’s some confusion in the courts as to whether pregnancy is always a “disability” under the ADA, and if not, whether the Pregnancy Discrimination Act requires employers to make actual accommodations to pregnant women, rather than just refrain from firing them.

In Young v. UPS, the Fourth Circuit Court of Appeals considered UPS’s policy of allowing people with disabilities to receive “light duty” accommodations. But UPS did not give the same accommodations to pregnant women who were temporarily unable to lift heavy items. The court decided that this policy was entirely legal. It didn’t discriminate against women who were pregnant – in fact, it treated all non-disabled people the same, pregnant or not pregnant, and that this is all the Pregnancy Discrimination Act requires.

The case has been appealed to the Supreme Court, which will decide it in the next term. The question is: is it discriminatory to treat pregnancy differently from other conditions that have the same requirements (like, heavy lifting restrictions).

The EEOC issued its Guidance two weeks after the Supreme Court agreed to hear the case. The timing is interesting – is the EEOC trying to influence the Court? Who can blame them? The EEOC is, after all, the federal agency charged with enforcing and interpreting the Pregnancy Discrimination Act, and if there was ever a time to make clear what the agency thinks, that time is now.

In its Guidance, the EEOC left no doubt that it reads the PDA to mean that an employer must accommodate a pregnant employee in the same way it accommodates non-pregnant employees with the same work limitations. That means, according to the EEOC, Young should be reversed because the PDA requires UPS to give Peggy Young the same kind of  light duty works that it gives non-pregnant employees injured on the job or considered disabled.

The EEOC Guidance also clarified that many pregnancy-related conditions are considered “disabilities” under the ADA, especially after Congress amended the ADA in 2008 to expand the definition of “disability.” The EEOC Guidance lists any number of pregnancy-related conditions that might require some form of accommodation or modified work arrangement, including sciatica, cardiovascular issues, post-cesarean complications, swollen legs that limit walking ability, post-partum depression, and even morning sickness.

The EEOC Guidance is a great sign for pregnant women. The spate of recent anti-worker rulings coming from the Court means we shouldn’t expect much help from them. Despite the literal words of the statute saying pregnant women must be treated like everyone else, the Court is likely to rubber stamp company policies that treat pregnant women differently from other workers with similar work restrictions. But the EEOC gives us a path forward anyway – we can still push for accommodations for pregnant women under the ADA.

And that’s important. Because without accommodations – without some recognition that being pregnant affects women’s bodies in profound ways that may affect their ability to work in the exact same manner as non-pregnant people – women will continue to be pushed out of the workforce, or to simply never even try to make it in careers that won’t accommodate slight modifications for an aching back or morning sickness.

Pregnant Women in NYC Get Accommodations Starting Today!

We've written before about the Pregnant Workers Fairness Act, which requires employers with 4+ employees to provide pregnant workers with reasonable accommodations for their pregnancy, child-birth, or pregnancy/child-birth related medical conditions (like, say, gestational diabetes). Such accommodations might include more frequent breaks, not having to lift heavy things for a few months, or taking some time to recover from child birth. The Act goes into effect today. It may be surprising to realize that federal law doesn't require employers to provide pregnant women with any accommodations for pregnancy or child birthUnless a pregnant worker has some other disability, under federal law employers are free to require them to stand all day without bathroom breaks and to come back to work the day after the baby is born.

This is due to a gaping hole between the Pregnancy Discrimination Act and the Americans with Disabilities Act. The Pregnancy Discrimination Act defined discrimination against women to include discrimination against pregnant women. That is, discrimination against someone for being pregnant is the same as discriminating against women.

This makes a certain amount of sense -- only women become pregnant, many of the reasons that people discriminate against women has to do with the possibility of them becoming pregnant, and many of the reasons people discriminate against pregnant workers has to do with people's stereotypes about women (i.e., that they'll become mothers and then give up on work).

The problem is that pregnant women need certain accommodations that other women don't -- like frequent rest breaks, or restrictions on how much they can carry. The only federal law that might require an employer to offer these kinds of accommodations is the Americans with Disabilities Act. But in order to get accommodations under the ADA, you have to be disabled. The law doesn't define pregnancy or childbirth as disabilities, meaning accommodations someone needs related only to pregnancy or childbirth aren't covered by the ADA.

New York City, joining in with many other localities, like the state of California, is filling in the gaps and providing its pregnant residents with better protections. Under the New York City law, employers with 4+ employees must provide reasonable accommodations for pregnancy, child birth, or related medical conditions. "Reasonable accommodation" is a bit of a term of art, but it essentially means that the employer has to provide accommodations to help the employee do their job so long as the accommodation does not constitute an "undue hardship" on the employer. If you are pregnant and your employer is refusing to accommodate your pregnancy, child birth or related medical condition, contact a lawyer.