Articles Posted in Disability Discrimination

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating allegations of discrimination and other unlawful employment practices, issued a revised Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Enforcement Guidance”) on July 14, 2014. This is the first comprehensive update that the agency has done with regard to pregnancy discrimination since 1983. The revised document discusses the restrictions on employers under the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination as a type of unlawful sex or gender discrimination. It also discusses how the Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Amendments Act of 2008 (ADAAA), relate to pregnancy discrimination.

Title VII, as amended by the PDA, prohibits employment discrimination, which can include disparate treatment, harassment, and denial of reasonable accommodations, based on pregnancy and medical conditions related to pregnancy. The Enforcement Guidance notes that this applies not only to current pregnancies, but also to both past and potential pregnancies. An employer may not discriminate based on an employee’s past pregnancy or pregnancy-related issues, nor may they discriminate based on factors like an employee’s intention to become pregnant, use of fertility treatments, use of contraception, or any actual or perceived risks to the employee of becoming pregnant.

Discrimination based on pregnancy could be obvious, such as when an employer fires or refuses to hire someone because she became pregnant, but it could also be much more subtle. Disparate treatment in assignment of light duty, breaks, and paid or unpaid leave could constitute pregnancy discrimination.
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A bill pending in the New York Assembly would amend the New York State Human Rights Law (NYSHRL), NY Exec. Law §§ 290 et seq., to require employers to provide reasonable accommodations for pregnant workers. The New York City Human Rights Law (NYCHRL), NY Admin. Code §§ 8-101 et seq., already requires reasonable accommodations for pregnant employees, thanks to an amendment enacted by the New York City Council in late 2013. Federal law, however, does not expressly provide similar protections in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., or the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

The Assembly bill, A1264, amends the definition of “reasonable accommodation” in the NYSHRL, NY Exec. Law § 292(21-e), to include actions taken on behalf of employees with disabilities and those with “pregnancy-related conditions.” It adds subsection 21-f to the statute, which defines “pregnancy-related condition” as any medical condition associated with pregnancy or childbirth “that inhibits the exercise of a normal bodily function,” but does not prevent performing a person’s job in a reasonable capacity; and it designates pregnancy and childbirth as temporary disabilities. Refusal to provide reasonable accommodations for a pregnancy-related condition is added to the list of unlawful discriminatory practices in NY Exec. Law § 296(3)(a).

Pregnant employees frequently deal with discriminatory treatment when they ask for accommodations, such as more frequent breaks to use the restroom, lifting restrictions, or rescheduling for doctor’s appointments. Employers may refuse to provide accommodations, forcing employees to quit or put their pregnancies at risk, or they may terminate a pregnant employee for inability to perform their job duties. Without legal requirements for reasonable accommodations, such actions do not necessarily violate anti-discrimination laws.
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A new law protecting workers from employment discrimination based on pregnancy, the Pregnant Workers Fairness Act (PWFA), took effect in New York City at the end of January 2014, and employees are already benefitting from it. A woman who was placed on unpaid leave shortly after notifying her employer of her pregnancy-related work restrictions was able to get her job back, with back pay, as one of the first tests of the new law. Anti-discrimination laws from the federal to the municipal level already prohibit pregnancy discrimination by covered employers. The new city ordinance expands those protections to require reasonable accommodations that allow pregnant employees to continue doing their jobs.

The question of accommodations for pregnant employees has posed difficulties in the past, as anti-discrimination laws primarily address employment practices that need to stop rather than actions an employer should take. Disability laws often require employers to make reasonable accommodations for certain employees, but pregnancy does not always fall within the scope of those laws.

The City Council passed the PWFA unanimously on September 24, 2013 and the mayor signed it into law on October 2. It officially took effect on January 30, 2014. The law amends the city’s definition of an “unlawful discriminatory practice” to include refusal to provide “a reasonable accommodation” to an employee for “pregnancy, childbirth, or related medical condition.” Admin. Code § 8-107(22). This protection applies if the employee needs the accommodation in order to “perform the essential requisites” of their job. The employee must have notified the employer of the pregnancy prior to requesting the accommodation.
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A driver for United Parcel Service (UPS) in New York has complained to the Equal Employment Opportunity Commission (EEOC), alleging that her employer unlawfully discriminated against her when she was pregnant. She has the assistance of the American Civil Liberties Union (ACLU), which filed the complaint on her behalf, asserting violations of state and federal anti-discrimination law. Pregnancy discrimination remains a difficult problem, as it can involve discrimination based on gender, a temporary disability, or a combination of the two. The law relating to pregnancy discrimination as a disability is not nearly as well-settled as gender discrimination law. New York’s Governor Andrew Cuomo is currently proposing legislation that would expand protections for pregnant women in the state.

The ACLU published an account by the complainant, Julie Desantis-Mayer, in January 2013, in which she described her experience after telling her employer about her pregnancy. She states that she worked at UPS for almost a decade, beginning as a part-time employee and advancing to a full-time driver position. She claims that, prior to her pregnancy, the company allowed her to perform light-duty tasks, including after she suffered an injury on the job in January 2012. When she informed her manager of her pregnancy, however, she claims that she was told that no light-duty positions were available. Her doctor had reportedly instructed her not to lift anything heavier than twenty-five pounds, requiring a lighter-duty assignment.
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A former employee of Kohl’s Department Stores, Inc. is claiming that the giant retailer forced her to quit her job at a store in Westbrook, Maine by failing to make an accommodation in her schedule for a chronic medical condition. The former employee, Pamela Manning, suffers from diabetes. The lawsuit, filed on her behalf by the Equal Employment Opportunity Commission (EEOC) in the U.S. District Court for the District of Maine in August, alleges that she endured significant health complications when Kohl’s switched her from a long-running regular schedule to an irregular one. She states that she notified the company multiple times that she needed a regular schedule, even bringing a doctor’s note explaining that she needed to work regular hours to avoid serious, possibly fatal, complications in her illness. She needed a routine schedule to allow time for her daily insulin injections. Her store manager allegedly laughed off her concerns and denied her request for a different work schedule. Kohl’s reportedly allowed scheduling accommodations for other employees for personal needs like day care. The suit argues that Kohl’s violated antidiscrimination provisions of the Americans with Disabilities Act (ADA) prohibiting discrimination or bias based on an employee’s disability.

Kohl’s has filed an answer in the lawsuit, denying that bias regarding her medical condition played any role in the store’s decisions. Kohl’s asserts that it had “legitimate, nondiscriminatory business reasons unrelated to [her] alleged disability” for the actions it and its employees took. Its answer acknowledges that the store manager changed her schedule in January 2010, but states that the company does not have enough information to form a belief as to the EEOC’s allegations regarding Manning’s health. The company further acknowledges receiving Manning’s doctor’s note, and it states that it made good faith efforts to accommodate her needs. Kohl’s argues that Manning’s demand for a regular schedule was not reasonable. and denies that the company acted with malice in any way.
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