Pregnancy Discrimination Act

Lactation Room Sign

We recently highlighted the “Act to Establish Pay Equity,” which was spearheaded by the SC Women’s Rights & Empowerment Network (WREN).

WREN is also supporting the “South Carolina Lactation Support Act” that expands upon the Pregnancy Accommodations Act by providing nursing employees with the right to break time and private space to express milk in their workplaces. A key provision of the Lactation Support Act is that it would apply to all employers, regardless of the number of employees. Continue Reading What Would the Lactation Support Act Mean for SC Employers?

top10A couple of weeks ago, employment law practitioners from South Carolina and North Carolina gathered for the 31st Annual NC/SC Labor & Employment Conference. The program was filled with many highlights, including a presentation from David Lopez, General Counsel of the United States Equal Employment Opportunity Commission (“EEOC”).

Mr. Lopez discussed the EEOC’s “Top Ten Litigation Developments” and gave some valuable insight into the current trends and thinking at the federal agency charged with regulating and enforcing workplace discrimination. According to Mr. Lopez, the EEOC’s priorities are the following, in order of importance:

  • Number 10: Racial Harassment
  • Number 9: Disparate Impact in Background Screening (i.e., whether questions about applicant convictions has disproportionate effect on certain racial minorities)
  • Number 8: Sex Discrimination
  • Number 7: Preservation of Access to the Legal System (arbitration agreements, retaliatory conduct, etc.)
  • Number 6: The Importance of Juries (statistics show EEOC is often successful in jury trials)
  • Number 5: Discrimination Against Immigrant, Migrant, & Other Vulnerable Workers
  • Number 4: Reasonable Accommodations for Disabled Workers
  • Number 3: LGBT Coverage under Title VII
  • Number 2: Pregnancy Discrimination
  • Number 1 (tie): EEOC’s Pre-suit Obligations (what exactly are the conciliation requirements?)
  • Number 1 (tie) : Religious Discrimination/Accommodation

Obviously, there is a lot to discuss with this list, and future posts will dive into some of these issues individually – so be on the lookout! In the meantime, employers should review this list carefully and think about how you are being proactive to prevent these discriminatory practices – particularly ones that are gaining increasing media attention such as LGBT discrimination, pregnancy discrimination, and banning the box legislation.

blog2015HRLawUpdateBannerHaynsworth Sinkler Boyd’s Employment Team is pleased to offer the 2015 HR Law Update in six cities this Fall.

Hot Topics. Through these six sessions, you’ll learn about hot topics HR managers are facing today: Immigration, Criminal Background Checks, Independent Contractors, FLSA Violations, Pregnancy Non-Discrimination, and more.

Don’t miss out. In one morning, we’ll cover the basics of HR law in a fast-paced, plain-English way that will provide a whole new level of understanding to anyone who has to deal with the thousands of facets of employment law.

September 22nd – Anderson, SC

September 23rd – Spartanburg, SC

November 11th – Sumter, SC

November 12th – Lexington, SC

December 1st – North Charleston, SC

December 2nd – Florence, SC

Each seminar will start with Registration & Continental Breakfast at 8:00 am. Sessions will begin at 8:30 and conclude by Noon.

To Register, click on the desired city above or visit www.hsblawfirm.com and look for Upcoming Events.

SESSION #1 – Wage and Hour Compliance: The most common FLSA violations. A discussion about most common unintentional FLSA violations, as well as situations to avoid. Presented by Chris Gantt-Sorenson

SESSION #2 – Immigration: What you need to know about President Obama’s executive action on Immigration. Presented by Garrett D. Steck

SESSION #3 – Independent Contractors: Are workers truly independent contractors or are they really your employees under the law?  An overview of current federal and state guidance on the classification, including practical application and tips for drafting your contracts to avoid the consequences of incorrectly classifying workers.  Presented by Emily H. Farr

SESSION #4 – Can the Box be Banned? Employers with a Legal Duty to Conduct Criminal Background Checks. Presented by Andrea H. Brisbin

SESSION #5 – Pregnancy Non-Discrimination Act:Directives from the Supreme Court’s ruling in Young v. UPS and its impact on the EEOC’s guidance and the Pregnancy Non-Discrimination Act Amendments. Presented by Pierce T. (Perry) MacLennan

SESSION #6 – Open Forum: A free exchange of information and ideas covering today’s topics and beyond. Attendees are encouraged to come ready with questions to ask the lawyers.

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969794_66501285Just recently, the United States Supreme Court decided a case that could require employers to provide more accommodations to pregnant workers. In Peggy Young v. United Parcel Service,[1] the Court established a new test to evaluate an employee’s claim under the Pregnancy Discrimination Act (“PDA”). Instead of clarifying the law, the Court created more confusion for employers.

The lawsuit involved a UPS employee named Peggy Young who requested “light duty” after her doctor told her not to lift more than 20 pounds at the beginning of her pregnancy and not more than 10 pounds when she reached 20 weeks. UPS denied the request based upon its policy to only accommodate workers who: (1) suffered on-the-job injuries; (2) are considered disabled workers under the ADA; and (3) those who lost their DOT certification.

Ms. Young then filed suit under the PDA, which amends Title VII and contains two parts: the first says that pregnancy bias is a form of discrimination based on sex, and the second says that pregnant female workers must be treated the same as other workers who are similar in their ability or inability to work. This case involved interpretation of that second part.

The Court created a new test to determine whether an employer violates the Act by granting accommodations to some employees, but not to pregnant employees. The initial burden is on the plaintiff employee to show that she was (1) pregnant, (2) sought accommodation, (3) was refused the accommodation, and (4) the employer accommodated other workers because of their inability to do their normal jobs. Then, the employer gets a chance to show that it had a neutral, business-related reason for the decision/policy. Then, the worker gets the last shot to show that the burden on pregnant workers outweighs the employer’s legitimate interests.

Confusing, right? On the one hand, the decision is good for employers because it does not mandate accommodating pregnant employees any time they accommodate other employees. On the other hand, it is difficult to envision a scenario where an employer could legally accommodate some workers while not accommodating pregnant employees.

Employers should review any light duty or other accommodation policies (whether written or unwritten) to ensure that pregnant employees are not being denied accommodations afforded to other employees.

If you have any questions or comments regarding this article, pregnancy discrimination or any other types of workplace discrimination, please contact the author.

 

[1] The full text of the opinion can be found at http://www.supremecourt.gov/opinions/14pdf/12-1226_k5fl.pdf.