Despite stringent legal safeguards in place, pregnancy discrimination in the workplace continues to be a widespread issue. Over 28,000 pregnancy discrimination complaints were filed with the U.S. Equal Employment Opportunity Commission (EEOC) over the past seven years. However, it is important to note that that figure is likely much smaller than the reality. Some employees do not know their rights and will fail to make a compliant, some may fear retaliation if they complain, some will miss the timeframe in which they must bring a claim, and others may simply decide to quit.
Discrimination or retaliation against a woman because she is pregnant is an actionable claim for which you and your company can be held liable. To mitigate that risk, consider taking steps to provide a safe and accommodating workplace for pregnant employees.
Understand the Law
The best deterrent against a pregnancy discrimination claim is knowledge and education, including training. There are a host of nuanced federal, state, and local laws that may be applicable.
• Pregnancy Discrimination Act (PDA) – The PDA was the first federal law to protect pregnant employees. It prohibits an employer from discriminating against an individual on the basis of sex. Pregnancy is included in the definition of this form of discrimination. Additionally, the PDA requires the fair and equal treatment of pregnant women for all employment-related purposes. If an employee’s pregnancy, childbirth, or related medical condition contributes to an employment decision — from hiring and firing to promotion and demotion— then the employer may be found to have violated the PDA.
• Arizona Civil Rights Act (ACRA) – Upholding the PDA at the state-level is ACRA. Echoing the same mandates as the PDA, ACRA bans discrimination of an individual based on sex. This includes pregnancy.
• Americans with Disabilities Amendments Act of 2008 (ADAAA) – The ADAAA is a broad-sweeping law that protects individuals with disabilities from discrimination in a host of different areas, including employment. The ADAAA ensures that individuals with disabilities can apply for a job, perform its essential functions, and enjoy equal employment benefits and privileges in the same manner as employees not impacted by disability. Pregnant employees may be afforded ADAAA reasonable accommodations to perform their duties despite limitations due to pregnancy, including abnormal pregnancies. The employer should engage with the pregnant employee to determine if accommodations under the ADAAA would assist her in performing her job. An employer who fails to provide pregnant employees with accommodations in accordance with the ADAAA may be found liable for pregnancy discrimination.
Create or Update Policies
To keep your organization compliant, ensure that written policies are in place that addresses the applications and requirements of relevant laws such as the PDA, ACRA, ADAAA, and FMLA, and ensure these policies are communicated to all employees. Periodically review and update your policies and procedures as needed, being cognizant of the impact on pregnant employees. Highlight important topics such as reasonable accommodations, benefits, paid or unpaid leave, time off, break times, discrimination, harassment, and retaliation. Take care not to obligate your employees to do too much, and on the other hand, take care to not do enough to protect pregnant employees.
Seek Counsel
Avoiding a pregnancy discrimination claim is preventable and it should not be left as a trial-by-fire experience. If you have questions about which laws apply or whether your existing policies are compliant, you should speak to an attorney to prevent potential claims from occurring. Even a slight misinterpretation or misapplication of the laws could result in a claim against you or your business.
Train Employees
Training goes beyond a token new hire class. Ongoing discrimination training for all members of your organizational hierarchy to communicate changes and updates to existing laws will benefit your employees and your business. Explain the policies in detail, including employees’ rights and the procedures for reporting alleged discrimination or retaliation. Post key policies around the workplace where they are visible and accessible, such as in lunch rooms or other places employees are likely to have the opportunity to see the posting.
Ensure Competency
Your human resources team and your executive team plays a critical role in managing and resolving pregnancy discrimination complaints. It is important that they are competent to conduct investigations and respond to complaints timely and appropriately. From gathering sensitive information to maintaining confidentiality, HR professionals and executives must be equipped with the tools necessary to resolve claims.
Update Job Descriptions
Recycling old job descriptions littered with vague references can put you in a precarious position. Regularly review and evaluate your job descriptions and be sure they reflect each position’s essential functions and the core competencies needed to carry out all duties. Your job descriptions, like other documentation, will be critically examined in the event of litigation. It could get you into trouble if you are in a position where you have to assert that a job duty that is not listed on the job description is required.
Talk to Your Employee
A key component of compliance and avoiding litigation is communication and executing a reasonable action plan to accommodate your pregnant employees. Foster open lines of communication with your employees. Encourage your pregnant employees to communicate the ways in which you can reasonably accommodate her limitations to facilitate her ability to perform job duties during her pregnancy.
Keep Detailed Records
Maintaining records is crucial. Courts and attorneys will carefully review documentation supporting the interactive process — the proactive measures you took to engage in a dialogue with your pregnant employee — and want to see that you made a good-faith effort to provide reasonable accommodations. Document the process, including initial communication and the implementation of accommodations.
While prevalent, liability for pregnancy discrimination claims can be averted if you take the appropriate steps. The legal consequences and staggering fines are too severe to avoid taking steps to prepare your organization with the necessary knowledge and tools.
Sarah O’Keefe joined Burch & Cracchiolo in 2013 after completing an appellate clerkship for The Honorable Patricia K. Norris of Division One of the Arizona Court of Appeals. Sarah practices in labor and employment law and commercial litigation. You can read more about Sarah on our website.
