EEOC publishes proposed rule for Pregnant Workers Fairness Act

This week, the EEOC published a Notice of Proposed Rule Making (NPRM) for the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. In a nutshell:

Not official use.

The PWFA requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.

 Employers may find the following resources helpful:

• Press Release: EEOC Issues Proposed Rule to Implement the Pregnant Workers Fairness Act;
• What You Should Know About the Pregnant Workers Fairness Act; and
• The actual NPRM.

Comments are due on or before October 23, 2023, and the Final Rule will follow sometime after that. 

Abortion and Employment Law in Pennsylvania

For obvious reasons, I'm revisiting some posts about abortion-related employment issues. First, in 2010, I noted a Pennsylvania employment law that addresses abortion and unlawful discriminatory practices. The Pennsylvania Human Relations Act (PHRA), includes the following provision:

It shall be an unlawful discriminatory practice . . . . For any public or private agency . . . [to] impose any burdens in terms of conditions of employment upon, or otherwise discriminate against any applicant . . . or any physician, nurse, staff member, student or employe thereof, on account of the willingness or refusal . . . to perform or participate in, abortion or sterilization by reason of objection thereto on moral, religious or professional grounds, or because of any statement or other manifestation of attitude by such person with respect to abortion or sterilization.

43 P.S. §955.1. There is, however, a carveout for clinics that operate "exclusively for the performance of abortion or sterilization or directly related procedures."

I also addressed some federal protection under Title VII. The Pregnancy Discrimination Act provisions under Title VII prohibit discrimination "on the basis of pregnancy . . . or related medical conditions." The Third Circuit has held that "related medical conditions" includes abortion:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.  

Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008). 

EEOC issues new pregnancy resource documents

Not official use.

Yesterday, the EEOC issued two new "resource documents" to address pregnancy under our workplace discrimination laws:

• Legal Rights for Pregnant Workers under Federal Law
• Helping Patients Deal with Pregnancy-Related Conditions and Restrictions at Work

(The EEOC also issued Equal Pay and the EEOC's Proposal to Collect Pay Data, if you're interested).

Jon Hyman digs a little deeper: EEOC on pregnancy-related limitations and restrictions at work.

New EEOC Guidance on Pregnancy Discrimination

Yesterday, the EEOC issued an updated version of Enforcement Guidance: Pregnancy Discrimination and Related Issues. Per the press release, it covers:

• the PDA's application to current, past, and potential pregnancy; 
• termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy; 
• application of the PDA to lactation and breastfeeding; 
• prohibition of forced leave policies; 
• the obligation to treat women and men the same with respect to parental leave policies; and 
• access to health insurance.

I suspect many readers will be most interested in the section on "equal access to benefits" in the wake of Young v. UPS.

The EEOC has compiled a bunch of other related guidance and other documents here.

The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law

In Young v. UPS, the Supreme Court created a framework for analyzing Title VII (including the Pregnancy Discrimination Act amendments) discrimination claims based on an employer's failure to accommodate pregnant employees. As usual... it's complicated. But the gist is that an employee may take a case to trial by merely showing that "the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers" - unless the employer has a "sufficiently strong" justification (whatever that means).

But, wait! What about the Americans with Disabilities Act (ADA), including the 2008 amendments (ADAAA)? As the Supreme Court noted in Young:

We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122 Stat. 3555, codified at 42 U. S. C. §§12102(1)–(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.

So, how about it? Employers must accommodate pregnant employees under the ADA? Not so fast!

The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual." Here's the problem for pregnant employees: The Appendix to EEOC's regs provides interpretive guidance telling us that, "Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." Therefore, pregnancy alone is not a disability.

But wait . . . there's more! "However, a pregnancy-related impairment that substantially limits a major life activity is a disability." The EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues provides more info:

Some impairments of the reproductive system may make a pregnancy more difficult and thus necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Disorders of the uterus and cervix may be causes of these complications. For instance, someone with a diagnosis of cervical insufficiency may require bed rest during pregnancy. One court has concluded that multiple physiological impairments of the reproductive system requiring an employee to give birth by cesarean section may be disabilities for which an employee was entitled to a reasonable accommodation. 

Impairments involving other major bodily functions can also result in pregnancy-related limitations. Some examples include pregnancy-related anemia (affecting normal cell growth); pregnancy-related sciatica (affecting musculoskeletal function); pregnancy-related carpal tunnel syndrome (affecting neurological function); gestational diabetes (affecting endocrine function); nausea that can cause severe dehydration (affecting digestive or genitourinary function); abnormal heart rhythms that may require treatment (affecting cardiovascular function); swelling, especially in the legs, due to limited circulation (affecting circulatory function); and depression (affecting brain function). 

In applying the ADA as amended, a number of courts have concluded that pregnancy-related impairments may be disabilities within the meaning of the ADA, including: pelvic inflammation causing severe pain and difficulty walking and resulting in a doctor's recommendation that an employee have certain work restrictions and take early pregnancy-related medical leave; symphysis pubis dysfunction causing post-partum complications and requiring physical therapy; and complications related to a pregnancy in a breech presentation that required visits to the emergency room and bed rest. In another case, the court concluded that there was a triable issue on the question of whether the plaintiff had a disability within the meaning of the amended ADA, where her doctor characterized the pregnancy as "high risk" and recommended that the plaintiff limit her work hours and not lift heavy objects, even though the doctor did not identify a specific impairment.

So, the pregnancy itself is not a disability... but a pregnancy-related impairment may be a disability.

Where does this leave employers? Probably confused and unable to discern whether the law requires them to accommodate a pregnant employee or not. But we have two primary initial inquiries:

1. Does the employer accommodate a large percentage of nonpregnant workers? (Young v. UPS); and

2. Does the employee have a "pregnancy-related impairment" that rises to the level of a disability? (ADAAA).

If the answer to either of those questions is "yes," then the employer must decide whether it can reasonably accommodate the employee without "undue hardship" (ADAAA) or if it has a "suffciently strong" justification for not doing so (Young v. UPS) (and a complicated list of other issues). Employers may want to consult a dart-throwing chimpanzee employment lawyer for this complex analysis.

How does a pregnant employee establish discrimination for failure to accommodate?

Yesterday, the Supreme Court issued its opinion in Young v. UPS, addressing pregnancy accommodation under the Pregnancy Discrimination Act (PDA) provisions of Title VII. In this post, I break down the holding.

Issue

The employee worked as a UPS driver when she became pregnant. She had a lifting restriction and therefore sought an accommodation - light duty work. UPS did not accommodate her. At the time, UPS provided light duty work as an accommodation to employees who (1) were injured on the job; (2) had disabilities and were entitled to accommodations under the ADA; or (3) lost their CDLs due to medical condition or injury.

Justice Breyer -
Public domain as work of federal government.

The PDA prohibits discrimination against pregnant employees, but does not specifically require reasonable accommodations for pregnant employees. However, it does require employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k). So, did UPS have an obligation to provide the pregnant employee with the accommodation?

Majority Holding

Justice Breyer tells us to just apply the McDonnell Douglas burden-shifting framework (well-known to any employment law practitioner). After Young, the prima facie showing under the PDA will look like this:

(1) The employee belongs to the protected class; 

(2) she sought accommodation; 

(3) the employer did not accommodate her; and 

(4) the employer did accommodate others “similar in their ability or inability to work.” 

(modified quote from pp. 20-21). The burden then shifts to the employer to put forward a “legitimate, nondiscriminatory” reason for its actions. The burden then shifts back to the plaintiff to show that the employer’s proffered reasons are in fact pretextual.

So far, this seems like familiar territory for employment lawyers. But how in the heck does that help us resolve this case? Well, here's where things get a little wacky. Justice Breyer announces a new test for how the employee can survive summary judgment on the final turn of the burden-shifting framework:

[T]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

What is a "significant burden"?

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.

What's a "large percentage'? Not clear. Apparently "most" will suffice.

Okay, and how do we know if the employer's justification is "sufficiently strong"?

Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.

That's pretty much all we get from this decision. What the lower courts do with it from here is anybody's guess. In this case, the Court vacated the summary judgment entered by the lower court, and the plaintiff's claim has new life.

Justice Scalia's Dissent

Justice Scalia goes off in a scathing, condescending (in other words, classic Scalia) dissent. Where did Justice Breyer's "significant burden" and "sufficiently strong" test come from? According to Justice Scalia, it came from a "wave of the Supreme Wand" and "poof!" a "deliciously incoherent" framework appeared. He also chides Justide Breyer for apparently conflating disparate impact claims with disparate treatment claims by allowing a plaintiff to proceed by showing a facially neutral policy's "substantial burden" on a protected class.  

BREAKING: SCOTUS Decides Pregnancy Accommodation Case

A few minutes ago, the Supreme Court issued its opinion in Young v. UPS regarding pregnancy accommodation. The main holding per the syllabus:

An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.

I'll try to figure out what the heck that means and provide an update later today.

Is Non-Pregnancy a BFOQ for Exotic Dancers?

Well, here's a sentence I never thought I'd read in a court opinion: "[T]here is a genuine issue of fact as to whether a dancer's pregnancy-status is sufficiently related to her sex appeal." Berry v. Great Am. Dream Inc., No. 1:13-CV-3297-TWT, 2015 WL 751650, at *2 (N.D. Ga. Feb. 23, 2015).

An "adult entertainment" facility fired a pregnant exotic dancer, who filed a discrimination claim under Title VII and the Pregnancy Discrimination Act amendments. The defendant argued that "sex appeal" was a bona fide occupation qualification (BFOQ), a defense to such claims, in a summary judgment motion.

Technically, a particular sex would be the BFOQ, not sex appeal. But, as the Court recognized: "although 'sex appeal' may not be a BFOQ, it may be a particular job requirement whose connection to a dancer's pregnancy-status renders the latter to be a BFOQ.

The employer ran into some problems with factual disputes (the enemy of any summary judgment motion). Apparently, some dancers were allowed to keep dancing (albeit on the floor instead of the stage) even after they became pregnant. There was testimony that one dancer continued until she was 8 months pregnant. Management testified that some customers preferred "thicker" bodies (I'm not sure "thicker" and "pregnant" are really synonymous . . . but the Court at least mentions the "thicker" comments).

Summary judgment DENIED! However, "sex appeal" may still serve as the employer's legitimate non-discriminatory reason for terminating the dancer, and I'm guessing they'll raise that argument soon.

The Supreme Court and the Men Who Lactate

How's that for a title? You can imagine my surprise when I saw a tweet:

Supreme Court concludes firing a woman for breastfeeding isn’t sexist because men can lactate http://t.co/G0S65HaOFJ #emplaw #hr #employees
— Donna Ballman (@EmployeeAtty) February 10, 2015

How in the world did I miss that!? A friend also emailed me a similar story: Breast-Feeding Mom Loses Discrimination Case Because Men Can Lactate Too. There's some tiny little smidgen of truth to the stories, buried under a mountain of . . . I'll call it "questionable journalism."

We'll start with the tiny bit of truth. In Ames v. Nationwide, the district court noted in a footnote that:

A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered . . . .  Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

The point being that lactation is not necessarily a "pregnancy-related condition" protected by the Pregnancy Discrimination Act - the plaintiff must provide evidence to establish that. This is not the same as holding that "firing a woman for breastfeeding isn’t sexist because men can lactate." More importantly, the plaintiff lost for entirely different reasons.

Despite the headline, the employer did not fire her. She resigned! She tried to argue constructive discharge, but the Court held:

Ames did not follow known internal grievance procedures to lodge her complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and surmised that her only reasonable option was to tender her resignation. Under existing law, Ames cannot prevail on her constructive discharge claim.

Well, that's just plain more boring than "firing a woman for breastfeeding isn’t sexist because men can lactate." And then there's this problem - the Court also found that the employer did not treat her in a discriminatory manner:

Providing a letter explaining the procedure for obtaining access to a lactation room is not an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead. Hallberg also sent an email requesting that Ames’s request for access to a lactation room be expedited. The Court cannot agree that these actions exhibit any of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.

Well, that's not gonna generate page clicks.

What happened on appeal? Well the Slate article claims that:"the Supreme Court . . . uph[eld] a federal appeals court ruling against a breast-feeding mother . . . . Part of the court's reasoning was, according to Galen Sherwin of the American Civil Liberties Union, 'that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.'"

Yeah, except that the Eighth Circuit did not address the male lactation issue at all. Not even a little. No mention whatsoever. Instead, the Eighth Circuit upheld the district court's decision that the employee was not constructively discharged.

And the Supreme Court? The Supreme Court decided not to hear an appeal from the Eighth Circuit. That means it did not in any way rule on the Eighth Circuit decision, which itself did not in any way address male lactation.

Occasionally, I wish that the media would spend more time covering employment law. When they take a footnote that is probably dicta from a trial court opinion and fabricate a Supreme Court ruling from it, I rethink that position. Although, we did learn something . . . men can lactate! . . . oh, and if you want to sue your employer for discrimination, don't resign unless you really have to.

End note: I should note that Donna Ballman was not the author of the article she tweeted, she was merely passing along coverage of this case to her Twitter followers. She provides her own, excellent coverage of employment law issues on her own blog and also on AOL Jobs.

SCOTUS Hears Arguments on Pregnancy Accommodation

The Pregnancy Discrimination Act amended title VII to prohibit workplace discrimination against pregnant employees. But does it require employees to reasonably accommodate pregnant employees? Not exactly. But it does provide that:

[W]omen affected by pregnancy . . . shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.

42 U.S.C.A. § 2000e(k).

Yesterday, the Supreme Court heard oral arguments (transcript) in Young v. UPS (SCOTUSblog case page). At the time that gave rise to the lawsuit, UPS did not provide a light duty accommodation to its pregnant employees. However, it did provide light duty for employees who (1) were injured on the job; (2) have a disability under the ADA; and (3) drivers who lost their DOT certifications. The employee argues that UPS was therefore not treating the pregnant women equally.

We'll find out whether the Supreme Court buys that argument in the first half of 2015.

$185 Million Pregnancy Discrimination Award

Discriminating against pregnant employees or employees who oppose discrimination is generally unlawful. That's not news. A California federal jury awarded a woman who worked for AutoZone $872,719 in compensatory damages ($393,759 for past economic loss earnings, $228,960 for future economic loss earnings and $250,000 for emotional distress).Well, that's pretty interesting, but I don't know that I'd call it big news. Oh, one last thing . . .

The jury awarded the woman $185 million in punitive damages!

Now that's newsworthy!

Sidenote: Can we declare a moratorium on the "185 million reasons to . . . . " headlines?

New EEOC Guidance on Pregnancy Discrimination and Accommodation

Yesterday, the EEOC issued a press release: EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues. We got three new documents:

• Enforcement Guidance: Pregnancy Discrimination and Related Issues
• Questions and Answers about the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues
• Fact Sheet for Small Businesses: Pregnancy Discrimination

To the surprise of no one, the EEOC has an extraordinarily broad interpretation of pregnant employees' rights and their employers' obligations. A few highlights:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.

Hmmmm, this sounds familiar - oh right, Young v. UPS, the upcoming Supreme Court case on this issue. The guidance also addressed "forced leave":

An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee's best interest.

And, we also got some guidance on leave policies and disparate impact:

A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.

Of course, those are just a few of the issues that I found interesting - employers should read the whole thing. The EEOC's interpretation of the PDA, ADA, and Title VII are not 100% binding (we may find that out sooner rather than later with Young v. UPS). That said, employers who ignore the EEOC's guidance face considerable risk of enforcement actions.

Image: EEOC Seal used in commentary on EEOC - not official use.

Breaking: SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case

Just now, the Supreme Court issued an order granting certiorari in Young v. UPS. The issue presented is:

Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

The employee alleges that UPS offered light duty work to employees who were injured at work, accommodated under the ADA, or who lost Department of Transportation certification - but not for pregnancy.

The gist is that the Pregnancy Discrimination Act prohibits discrimination - so even if it doesn't require accommodation, the employer must treat pregnant employees like other similarly situated employees. In this case, that means providing light duty work.

I can't wait to see what SCOTUS does with this one! We'll have to wait until next season though.

Miles on Pregnant Workers Fairness Act

Straight from the shameless self-promotion department: my new article on the Pregnant Workers Fairness Act is now available in the Reading Eagle Business Weekly. It may require a subscription or login - but with great content like articles by me, it's gotta be worth it right?

Lactation Discrimination - COTW #146

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit held that "lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act)." In other words, lactation discrimination is illegal. The Court reversed the district court's decision (which was Case of the Week #79).

The holding is not all that shocking, but the factual background is a little unusual:

Venters told Fleming that she was breastfeeding her child and asked him to ask Cagle whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle “responded with a strong ‘NO. Maybe she needs to stay home longer.’ “ On February 17, 2009, Venters called Cagle and told him her doctor had released her to return to work. Again, she mentioned she was lactating and asked whether she could use a back room to pump milk. After asking this question, Venters testified that there was a long pause, and when Cagle finally responded, he told her that they had filled her spot.

So, this sounds a little bit like an accommodation case. But it's not. The Court made clear that it's decision to allow the woman to proceed with her sex discrimination claim was not an accommodation case:

The issue here is not whether Venters was entitled to special accommodations—at the time, she was not entitled to special accommodations under Title VII—but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk.

And, in case that wasn't clear enough, Judge Edith Jones issued a concurring opinion:

[T]his court held that the PDA does not mandate special accommodations to women because of pregnancy or related conditions. It follows that if Venters intended to request special facilities or down time during work to pump or “express” breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit. Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.

Bottom line: lactation discrimination is unlawful, but failure to accommodate is probably not.

Obligatory reminder: Obamacare amended the FLSA to require reasonable break time (and space) for nursing mothers.

Fired for What!? - Armani, Ketchup on Cheesesteaks, and Peeing Too Much

The first Fired for What!? of 2013 is a triple feature! Enjoy:

• Impersonating Armani on Facebook - "A Marion County Deputy was fired Wednesday for pretending to be fashion designer Giorgio Armani on Facebook and using the account to pick up a teenager, an internal investigation released Thursday shows." The article is a little unclear, but it sounds like he used the "Armani" account to convince a girl he was a fashion model so he could sleep with her - sadly, it apparently worked. (HT: @Eric_B_Meyer).


• Peeing Too Much - Amazingly, an employer allegedly terminated a pregnant employee because she was taking too many bathroom breaks during her pregnancy. We probably all agree that this is terrible practice, but is it unlawful? Generally, employers are not required to provide pregnant employees with accommodations - but they are required to accommodate pregnancy-related conditions that constitute disabilities under the ADA. These are tough cases for both sides - my take is that employers should just be reasonable and provide simple accommodations like bathroom breaks. (HT: Jennifer White).


• Sandwich Artist Threatens Customer Over Ketchup - Gawker has a funny defense of a Subway "Sandwich Artist" who was ready to throw down to defend the integrity of . . . the cheesesteak!? When a customer tried to get ketchup on his cheesesteak, the employee allegedly kicked over a chair and tried to fight him. He also told him "there's ketchup three aisles down" - get your own ketchup! I'm going to side with the employer on this one.

Never a dull moment!

No, Seriously - EEOC Targeting Pregnancy Discrimination

Last month, the EEOC released a draft strategic plan highlighting some "emerging issues," including:

Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

That should have been a sign that the EEOC was setting its sights on pregnancy discrimination.

If you had any doubts, cast them aside. The Huffington Post reports on four new EEOC lawsuits involving pregnancy discrimination, all filed within the last week, in Pregnancy Discrimination In The Workplace Target Of New EEOC Crackdown. There was also a fifth case but it settled.

So, what are these cases?

1. One employee was fired from her security officer job while she was pregnant. The employer told her they would bring her back if any positions opened up - they never called, but hired male employees instead.
2. Pursuant to a policy in its employee handbook, a wing joint allegedly laid off eight female employees for getting pregnant (pro tip: don't include mandatory discrimination in your handbooks).
3. A seafood restaurant laid off two pregnant waitresses allegedly because "their pregnancies caused them to be a liability to the company."
4. Finally, the EEOC filed suit against a juvenile detention center that allegedly maintains a policy that "require[s] employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing to work."

I want to emphasize that these are just the EEOC's allegations, and the employers have not yet been afforded due process - but that's not really the point. The point is that the EEOC is clearly making an effort to target pregnancy discrimination.

Still not convinced? How about this tweet from Chai Feldblum, who is actually a commissioner on the EEOC:

Yes -- we are serious about this! Pregnancy Discrimination Target Of EEOC huffingtonpost.com/2012/09/29/pre… via @huffingtonpost
— Chai Feldblum (@chaifeldblum) October 2, 2012

Now may be a good time for employers to crack open those employee handbooks to make sure their pregnancy policies are in order.

One final note, it's not just the EEOC that's hitting this issue - pending legislation would require employers to reasonably accommodate pregnancy. I blogged about the House bill back in May - Eric Meyer notes recent efforts in the Senate.

Image: EEOC logo used in commentary on EEOC. Not official use.

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.

Lawffice Links - Pregnant Workers Fairness Act

Here's a new batch of Lawffice Links for your reading pleasure. Nothing but Pregnant Workers Fairness Act in this one:

• Representatives Nadler and Maloney introduced a bill, the Pregnant Workers Fairness Act, to require employers to reasonably accommodate pregnant women (and other protections).
• The National Women's Law Centre issued a fact sheet supporting the law.
• Jon Hyman argues that such a laws is unnecessary.
• Eric Meyer agrees with Jon.
• Eric also points us to the EEOC's Facts About Pregnancy Discrimination (The Pregnancy Discrimination Act amended Title VII to address some pregnancy discrimination issues).

What's missing? The actual bill. I emailed Congressman Nadler for a copy - I'll post it when/if I get it.

Abortion Protection in the Third Circuit

Earlier this year, I wrote a post reminding readers of a Pennsylvania state employment law addressing abortion. Now, a reminder about abortion and federal law. It's pretty straightforward, actually.

Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act amended Title VII to prohibit discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C.A. § 2000e. In Doe v. C.A.R.S.*, the Third Circuit held that:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.

Like I said, straightforward. There is one little twist in pregnancy discrimination cases and that's in the first element of a prima facie case (in bold):

1. she is or was pregnant and that her employer knew she was pregnant;
2. she was qualified for her job;
3. she suffered an adverse employment decision; and
4. some nexus between her pregnancy and the adverse employment action

One final note on the case, the Third Circuit upheld the lower court's decision to seal the case and allow the plaintiff to use a pseudonym, "Jane Doe."

* Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) order clarified, 543 F.3d 178 (3d Cir. 2008) and cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 432 (U.S. 2008).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.