Federal Lawsuit Alleges Disparate Impact Discrimination Based on Pregnancy

Employment discrimination on the basis of pregnancy, childbirth, and medical conditions related to either is considered unlawful sex discrimination under antidiscrimination laws in New York City and elsewhere around the country. The extent of protections offered by these statutes is a matter of ongoing dispute among New York employment attorneys and in the courts. A lawsuit originally filed last year alleges that a company’s attendance policy discriminated against pregnant employees, both intentionally and through disparate impact. Hills, et al v. AT&T Mobility Services LLC, No. 3:17-cv-00556, 2d am. complaint (N.D. Ind., May 14, 2018).

The Pregnancy Discrimination Act (PDA) of 1978 amended the definition of discrimination “on the basis of sex” in Title VII of the Civil Rights Act of 1964 to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Unlawful pregnancy discrimination includes overt acts, such as terminating an employee upon learning of their pregnancy, or forcing a pregnant employee to take unpaid leave. It can also include “disparate impact” discrimination, in which a seemingly neutral policy or practice violates Title VII if it has an adverse and disproportionate impact on a protected group.

In addition to prohibiting disability discrimination, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with disabilities. 42 U.S.C. §§ 12111(9), 12112(b)(5)(A); 29 C.F.R. § 1630.9. The statute provides a broad definition of “disability,” including both an actual condition that impairs life activities, and the perception by others of having such an impairment. 42 U.S.C. § 12102(1)(C). This definition does not expressly include pregnancy, but amendments to the ADA, along with interpretations by the Equal Employment Opportunity Commission (EEOC), may allow various conditions associated with pregnancy and childbirth to fall under the definition of “disability.”

The Family and Medical Leave Act (FMLA) states that qualifying employees are entitled to up to twelve weeks of unpaid leave during a year for specified reasons, including the birth of a child. 29 U.S.C. § 2612(a)(1)(A). The statute prohibits employers from discriminating or retaliating against employees who exercise their rights under this statute, or from interfering with their exercise of these rights. Id. at § 2615.

The plaintiffs in Hills allege that their employer, the defendant, has discriminated against them based on pregnancy. According to their complaint, the defendant maintains a “Sales Attendance Guidance (‘SAG’) policy” for non-exempt retail employees. Hills, complaint at 5. Employees receive “points” for absences, as well as partial points for “arriv[ing] late, or depart[ing] early.” Id. at 6. Accumulation of enough points can result in discipline or termination. The policy allows an absence to be excused if it fits within thirteen defined categories, which do not include “pregnancy, childbirth, or related medical conditions.” Id.

Pregnancy, as the plaintiffs note, often requires periods of absence from work, but they allege that the defendant did not allow excused absences for pregnant employees for conditions related to pregnancy. They further claim that the defendant “frequently excused male and/or non-pregnant employees who arrived late, left early, missed work, or took extended breaks.” Id. at 8. Their complaint asserts causes of action for discrimination and retaliation under the PDA, ADA, and FMLA.

The employment attorneys at Phillips & Associates advocate for New York City employees, former employees, and job seekers, helping them assert their rights in claims for pregnancy discrimination and other unlawful employment practices. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (212) 248-7431.

More Blog Posts:

New York City to Require Dialogue Between Employers and Employees Regarding Accommodations for Pregnancy and Other Conditions, New York Employment Attorney Blog, February 28, 2018

Plaintiffs in Successful Pregnancy Discrimination Lawsuit Seek to Change State Law, New York Employment Attorney Blog, February 21, 2018

Reasonable Accommodations for Pregnant Employees Are Still Not Included in Most Anti-Discrimination Statutes, New York Employment Attorney Blog, June 28, 2017

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