March 24, 2021

Pregnancy, Equity & Sex Discrimination

On March 24th, the U.S. House of Representatives’ Committee on Education and Labor passed by a vote of 30-17, the Pregnant Workers Fairness Act. One can understand the intent behind the bill when we read cases of related discrimination.  Even on the exact same day, the EEOC published notice of the settlement of a case for $45,000 after an employee was fired shortly after she advised her employer that she was pregnant.

Here is my concern. If enacted, the PWFA could have some unintended consequences for employers.

Scenario #1. The PWFA prohibits discrimination and requires reasonable accommodation for a short-term medical condition that is experienced only by biological women (in the spirit of being non-binary, at least as far as I know). Imagine you are hiring two candidates, one male, one female. The male candidate has a broken leg and tells you for just the next six weeks he will need to sit for at least five minutes every hour.  The female candidate tells you she is pregnant and for just the next six weeks she will need to sit for at least five minutes every hour.  You hire the woman, because you figure you better follow the PWFA (remember, we’re just pretending it has been enacted).  Can you be sued by the male candidate for sex discrimination?  Could he allege that the only difference between him and the woman you hired was their sex.

Scenario #2.  Same as above but now they are both your employees. They have both asked you for the reasonable accommodation of sitting for five minutes out of every hour. You are short staffed and can really only grant these repeated breaks to one of the two.  You grant the female employee’s request, again to comply with the law. Same question, can the male employee sue you for sex discrimination because you treated two similarly situated employees differently based solely on sex?

Scenario #3. This is a concern you may have read here or here at just about this same time last year. The PWFA provides that an employer cannot “require such employees to take paid or unpaid leave if another reasonable accommodation can be provided.”  Now, imagine you have two full-time employees. Both are females. Both can no longer work full-time and have requested to reduce their hours to part time.  The more senior of the two has a disability under the Americans with Disabilities Act. The other employee is not disabled but is pregnant.  You have only one part-time vacancy for which they are equally qualified.  Your policy provides when equally qualified employees bid on the same vacant position, the more senior employee will be placed in the vacant job.  Would the PWFA require you to violate your own policy, place the pregnant employee in the vacant, part-time position and tell the employee with the disability to take the unpaid leave of absence? Even without a policy, would the PWFA always elevate the status of pregnancy above that of a disability so the pregnant employee would never be required to take a leave of absence as long as there is one reasonable accommodation available? If so, could the employee with the disability sue you under the ADA for discrimination and failure to provide reasonable accommodation in either scenario?

I’m just sayin’.  I think these may be one or more issues not yet considered by Congress.  So, what next?  I have shared these concerns with my Senator and Congressmen. I suggest that a safe harbor or qualified immunity be added to the bill that will protect employers who follow the law, if enacted, from facing legal claims for doing so.  If you have similar concerns, I hope you will do the same e.g., share them with your Congressional representatives.  Until then, we will stay tuned.

Yours in advocacy. #HR #Smallbiz