Articles Posted in Pregnancy Discrimination

Last month, Governor Cuomo signed five bills into law that strengthen New York law’s prohibitions against sexual discrimination. Each of these bills form a part of the Women’s Equality Act, and collectively address such areas as equal pay for equal work, sexual harassment, familial status discrimination, attorneys’ fees in sexual discrimination and sexual harassment cases, and reasonable accommodations for pregnant employees. The laws, which are described below, will take effect on January 19, 2016.

Pay Equity

Although New York law already prohibits employers from paying women less than men for performing the same work, the bill strengthens such prohibitions by (1) making it unlawful for an employer to prohibit employees from sharing their wage information with each other, thereby enabling employees to determine whether there exists a salary disparity between them and their coworkers; (2) requiring an employer to show that pay differentials between men and women are due to “a bona fide factor other than sex, such as education, training and experience,” and otherwise limiting the circumstances under which pay disparities between men and women might be permitted; (3) increasing the amount of damages in cases of sexual pay disparities based upon sex from 100% liquidated damages to 300%.

On March 25, 2015, the United States Supreme Court issued its awaited decision in Young_v._UPS_(12-1226), in which the Court set forth the standard to be used in analyzing sex discrimination cases involving an employer’s failure to provide pregnant employees with work accommodations.  Although the  Court did not rule that employers are required to provide reasonable accommodations to pregnant employees per se, the effect of its analysis compels that accommodations be considered and provided.

The case involves a driver for UPS, Peggy Young, whose physician restricted her from lifting more than 20 pounds for the first 20 weeks of her pregnancy, and then 10 pounds for the remainder of her pregnancy.  UPS policies required that employees be able to lift 70 pounds alone, and up to 150 pounds with assistance.  As a result, UPS did not permit Young to work during her pregnancy, and she ultimately lost her medical coverage.  UPS’s policy did, however, provide accommodations to employees who could not meet the lifting requirements, but only where workers  (i) were injured on the job; (ii) had a “disability” under the Americans with Disabilities Act (ADA); and (iii) lost Department of Transportation certifications.  According to UPS, because Young was not included within one of these three categories, UPS did not discriminate against her.  Young argued that UPS  discriminated against pregnant employees because it maintained light duty policies for the three categories of employees, but not for workers who were pregnant.  Consequently, she argued, UPS violated the Pregnancy Discrimination Act of 1978 (PDA), which extended the prohibitions of sex discrimination contained in Title VII of the Civil Rights Act of 1964 to discrimination on the basis of pregnancy.

The Supreme Court rejected both Young’s and UPS’s interpretation of the PDA as they related to the issue of pregnancy accommodations.   According to the Court, the law permits “an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate nondiscriminatory, nonpretextual reason for doing so.”  As a result of this principle of employment discrimination analysis, a pregnant worker can establish a prima facie case by showing that she belongs to the protected class, sought an accommodation, that the employer failed to accommodate her, and the employer accommodated others “similar in their ability or inability to work.”  If the employee is able to meet this burden, then the employer must come forward with some evidence of a legitimate nondiscriminatory reason for not granting the accommodation to the pregnant worker.  Although under the traditional analysis, the employee would only be able to rebut the nondiscriminatory reason by showing that it was not the real reason motivating the employer’s refusal to accommodate, the Supreme Court appears to have taken a slightly different approach.  According to the Court, the employee would be permitted to a jury trial if she could produce sufficient evidence that the employer’s policy places a “significant burden on pregnant workers,” and the employer’s legitimate nondiscriminatory reasons are not strong enough to “justify the burden.”  Under such circumstances, with due consideration given to the burden imposed, an inference of intentional discrimination could arise.  Thus, an employee might be able to prove pregnancy discrimination where she could show that the employer accommodates a large percentage of nonpregnant workers, while refusing to accommodate a large percentage of pregnant workers.

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance applicable to the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), concerning pregnancy-related conditions.  Pregnancy discrimination implicates both the PDA and ADA as well as other federal and New York statutes.

The PDA was enacted in 1978 to clarify that discrimination based upon pregnancy, childbirth or related medical conditions constitutes sex discrimination, in violation of Title VII of the Civil Rights Act of 1964 (Title VII).  Generally, under the PDA, employers are required to treat women affected by pregnancy, childbirth, or related conditions the same as other applicants or employees with respects to all aspects of employment.

The ADA does not consider pregnancy to be a disability, although pregnant employees may have impairments related to their pregnancies that qualify as disabilities under the ADA.  Following 2008 amendments to the ADA, it is much easier for an employee to demonstrate that an impairment rises to the level of a statutory disability.  Thus, under the ADA, reasonable accommodations must be given to employees who suffer from a pregnancy-related disability.

Recently, the New York City Council amended the New York City Human Rights Law to specifically require that a covered employer is specifically required to reasonably accommodate the pregnancy of an employee.  Although the Americans with Disabilities Act, as well as New York state and New York City law already requires employers to provide reasonable accommodations to employees who suffer from disabilities, including those related to pregnancy and child birth, the New York City amendment specifically address pregnancy, regardless of whether it leads to conditions deemed to be disabilities under the law.

According to the New York City amendment, which takes effect on January 30, 2014, employers with four or more employees must accommodate an employee’s pregnancy, childbirth, and related medical condition, if such accommodation would permit the employee to perform the “essential requisites of the job.”

An employer is not required to provide a reasonable accommodation if (1) the employer is unaware that the employee is pregnant, has given birth, or has a related medical condition; (2) providing the reasonable accommodation would cause the employer an “undue hardship”; or (3) the employee would not be able to perform the essential requisites of the job even with the reasonable accommodation.

Despite that employers have become increasingly more aware of blatant employment discrimination in the workplace, pregnancy discrimination continues to thrive. The Huffington Post recently posted an article discussing several pregnancy discrimination cases recently filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). It appears that pregnancy discrimination has become an enforcement priority for the EEOC, which will likely be filing additional cases in the near future.

In Equal Employment Opportunity Commission v. Bloomberg L.P., No. 07 Civ. 8383 (S.D.N.Y. August 16, 2011), Judge Loretta Preska of the United States District Court for the Southern District of New York, dismissed a claim asserted by the Equal Employment Opportunity Commission (“EEOC”) on behalf of 78 claimants alleging that Bloomberg L.P. engaged in a “pattern or practice” of discrimination on the basis of pregnancy and sex. Judge Preska found insufficient evidence to support the EEOC’s position that Bloomberg L.P.’s standard operating procedure included pregnancy discrimination.

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The United States Attorney for the Southern District of New York recently filed a civil rights action against the Port Chester-Rye Union Free School District, located in Westchester County, New York. The action alleges that the school district discriminated against an employee because of pregnancy.
The employee alleged that when she became pregnant with her first child, she lost her position as chairperson of the Committee on Special Education. She alleges also that she was denied the position when she became pregnant with her second child.

Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers’ rights legislation in the nation.
Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

Earlier this week, the United States Supreme Court issued its opinion in AT&T Corp. v. Hulteen, holding that an employer did not violate the Pregnancy Discrimination Act (PDA) through a seniority system for pension and other employee benefits that credited an employee with service while out on disability leave, but only provided partial credits to employees who had taken pregnancy leave.

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Last fall, the Equal Employment Opportunity Commission (EEOC), filed a pregnancy discrimination claim against Bloomberg LP based upon complaints received from three employees. Since that time, the number of women charging Bloomberg LP with pregnancy discrimination has increased to 72. According to New York Magazine, that number constitutes about one in seven of the employees who became pregnant in the last six years. Although Bloomberg LP referred to the initial filing as a “publicity stunt,” the increase in the number of employees alleging sexual discrimination renders that characterization extremely difficult to sustain.