Combatting Pregnancy and Caregiver Discrimination
For too many pregnant women and parents, the journey to parenthood is tainted by the constant fear that their employer will suddenly consider them persona non grata. Most people know somebody who has been marginalized, demoted or even fired because their employer saw their family obligations as a burden. Menken Simpson & Rozger LLP has successfully represented countless pregnant workers, parents and other caregivers who have faced discrimination in the workplace. Most recently, MSR filed a pregnancy, familial status and caregiver discrimination lawsuit against the Barrow Street Nursery School. As alleged in the complaint, our client was a beloved assistant teacher at the school for nearly decade. When she announced that she was pregnant and intended to raise her child as a single mother, she was promptly demoted. Then, while on leave, her employment was terminated. Read the complaint here. The case is being litigated by Scott Simpson.
While pregnant workers continue to lack sufficient protection and benefits under federal law, Congress recently passed the Pregnant Workers Fairness Act (PWFA), which took effect on June 27, 2023. The PWFA requires “covered employers” to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees, Congress, Federal agencies, employment agencies, and labor organizations. The PWFA provides an exception to the accommodation requirement where providing an accommodation would pose an undue hardship.
What Qualifies as a Reasonable Accommodation?
The PWFA’s definition of “reasonable accommodation” is the same as the definition in the Americans with Disabilities Act (ADA), which defines it as a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job. What may be a reasonable accommodation in a given situation is typically determined by engaging in an interactive process between a covered employee and the employer.
The House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations, meaning they would impose a significant difficulty or expense on the employer.
What Employees Should Look For
Covered employers cannot:
Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.
Note: The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.