Tuesday, July 17, 2012

PA Bill Would Prohibit "Pregnancy" Discrimination

Pennsylvania House Bill No. 2542 (text here) would add "pregnancy" to the list of protected classes under the Pennsylvania Human Relations Act (PHRA). The PHRA is Pennsylvania's version of Title VII, protecting individuals from employment discrimination. The proposed law would just insert "pregnancy" into the existing text, prohibiting discrimination
. . . because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability or pregnancy or the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor . . . .
Question for strict textualists . . . does the pregnancy have to be "non-job related"? I'd love to litigate the case where that issue comes up! The bill also defines "pregnancy" as "women affected by pregnancy, childbirth or related medical conditions."

Back in 1978, the Pregnancy Discrimination Act amended Title VII to expressly define sex-based discrimination to include pregnancy. So, what's the point of the PA bill? It's tough to say. Title VII only covers employers with 15 or more employees, and the PHRA covers employers with 4 or more employees. I guess you could argue that the PHRA amendment covers those 4 to 14-employee employers. There are also some subtle nuances that make the PHRA a little different from Title VII (different damages, individual liability, etc.).

One HUGE note for employers though . . . pregnancy discrimination is already prohibited by the PHRA whether it expressly includes it or not! "Discrimination based on pregnancy constitutes sex discrimination . . . under the PHRA." Gallo v. John Powell Chevrolet, Inc., 765 F. Supp. 198, 209 (M.D. Pa. 1991); and H.S.S. Vending Distributors v. Pennsylvania Human Relations Comm'n, 639 A.2d 953, 954 (1994)(employer "terminated [Plaintiff's] employment because she was pregnant, in violation of the Pennsylvania Human Relations Act (Act)").

And, for comic relief, the Commonwealth Court's 1975 holding that the PHRA "requires that pregnancy be treated as any other disease." Unemployment Comp. Bd. of Review v. Perry, 349 A.2d 531, 533 (1975).

In any event, amending the PHRA to include "pregnancy" should have little practical effect. If you can think of any, drop me a comment because I'd love to know. I guess it doesn't hurt to expressly include it so that employers know their obligations (and employees know their rights). Now, we'll wait and see if it passes . . .

UPDATE: I guess the amendment would also remove the issue from the judiciary. In theory, a court could hold that pregnancy discrimination is not currently covered.

HT: The NEW! PBA Labor and Employment Law Section LinkedIn Group (ya gotta be a member to be a member, so sign up today).

Image: Personal photograph of the Capitol Building in Harrisburg, PA.

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