March 15, 2020

When Does Pregnancy Get Preferential Treatment?

Earlier this year, the EEOC announced the settlement of three pregnancy discrimination lawsuits in less than a 30-day period. All three involved the discharge of an employee whom the employer knew was pregnant.

Most employers understand their obligations under the Americans with Disabilities Act (ADA) to not discriminate and to provide reasonable accommodation to a qualified individual with a disability.  What may be less clear is when the same or a similar obligation with regard to reasonable accommodation is owed to a pregnant employee or applicant.

For example, in light of COVID-19, some employers are receiving requests from pregnant employees to be excused from work for fear of contracting the virus and exposing their unborn child to harm. On the flip side, employers are wondering if they should put pregnant employees off from work before others for the same reason.

The rights of pregnant employees is being addressed at the state and local levels as well as under federal law.  New Mexico may be the latest state to do so. Under that state’s new law, an employer must provide reasonable accommodation for an employee or applicant with a need related to pregnancy, childbirth or a related condition. The National Women’s Law Center (NWLC) reports at least 27 states have a similar law.

Take this recent ADA case. An employee sued her employer for failing to provide her with a reasonable accommodation in violation of the ADA. She is deaf and requested an interpreter.  Instead, her employer had her co-workers and supervisors relay, on her behalf, critical test results to requesting physicians. The court found in the employer’s favor. Why? The court reminded us that under the ADA, “Employers are not required to provide an accommodation that the employee prefers—all that is required is that the employer provide an effective accommodation.” (Read more here).

But legislation pending before Congress may change all that. H.R. 2694 The Pregnant Workers’ Fairness Act proposes employers should provide the pregnant worker’s preferred accommodation.

To learn more about these current trends, the EEOC’s latest advice related to COVID-19 practices and more, join this month’s webcast on April 22nd, “Pregnancy: The New Preferred Protected Class?”  Click here to check out the agenda or to register.  Price reduced to $25 pp. Pre-approved by HRCI and SHRM for 1.25 credits.