What Employers Need to Know About Pregnancy Discrimination in Pennsylvania

Under both federal law and Pennsylvania law, employers may not discriminate against employees who belong to certain vulnerable groups or possess certain protected characteristics. This basic premise underlies all Civil Rights legislation.

Pregnancy is an example of one such characteristic. Pregnancy discrimination is specifically addressed in the Civil Rights Act of 1964, 42 U.S.C. 2000e(k), referred to as the Pregnancy Discrimination Act (PDA).

Penalizing an employee for being pregnant is unlawful. However, the converse can be equally true. That is, treating an employee who has revealed a pregnancy as though she is unable to perform the job, fragile, or needs to be taken care of, can also reflect gender discrimination. Does this seem contradictory? Confusing? This brief guide will cover the basics. But at the core, employers need to have a consistent process for all employees protected under the law. Consistency wins the day, even if in individual cases it seems more or less fair. It’s best to speak with a qualified employment lawyer if you have questions about this subject.

The Pregnancy Discrimination Act of 1978

The PDA is an amendment to the Civil Rights Act of 1964, that prohibits employers from discriminating against employees and applicants/candidates based on pregnancy. The PDA specifically prohibits discrimination against pregnant workers and candidates when making decisions related to:

• Hiring
• Firing
• Promotions
• Pay rates
• Layoffs
• Job duties/assignments
• Training
• Fringe benefits
• Other terms and conditions of employment

The PDA essentially requires employers to treat pregnant employees as if they have a short-term disability and provide pregnant workers with the same accommodations or benefits as it provides for non-pregnant workers with short-term disabilities. The U.S. Supreme Court said it succinctly:

The Pregnancy Discrimination Act makes clear that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination applies to discrimination based on pregnancy. It also says that employers must 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.S. § 2000e(k).

Young v. UPS, 575 U.S. 206, 135 S. Ct. 1338 (2015). Think about it through the following example: a male construction worker has a shoulder injury from a softball game after work and is released by his physician to “light duty.” Before you determine what work you have that is “light duty,” realize that all similar employees with short term injuries must be treated equally. So, act with intentionality:

1. Get specific work restrictions based on the actual job duties from the treating provider (do this all the time, no exceptions).
2. Follow the treating provider’s instructions on the restrictions and get clarification if needed.
3. Offer, in writing, actual work that meets the restrictions. Track work assigned by task and time. Remember, restrictions can change over time, as recovery occurs, or a pregnancy progresses. So, updates and review are required to make the process work. “Actual” work is work that exists and contributes to the operation. It is not made-up work, but it can be special project oriented. Continuing with the example, a pregnant construction worker with a lifting restriction may be assigned to sort, file and update job contract files, if that work meets her restrictions and needs to be done. She may be moved from a paving crew to a flagging crew, if that transfer meets her work restrictions. By contrast, if the male construction employee with the softball injury is allowed to stay at the office, answer phones, and “mind the store,” something that has not been a real job within the company, then you have made that assignment “actual” work that would also have to be available for a pregnant employee as well.

These cases are all fact specific. Consider a slight change of facts. The male construction worker with the softball injury was able to stay at the office and answer phones because the week prior the receptionist quit. When a new receptionist is hired, that work is no longer available as a modified duty assignment. And just because an employee with a short-term disability, like pregnancy, needs modified duty, does not mean you oust the new receptionist or that you have to let the pregnant employee sit in the office with nothing to do.

If there is no work; there is no work. You do not owe an employee with a short-term disability, including pregnancy, a 40-hour work week, if you do not have the actual work that meets the stated restrictions, even where there may have been other instances when employees with short term disabilities were provided modified work, as long as the employer had a legitimate non-discriminatory reason for making a distinction. In Young, the Supreme Court stated that it “doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. (Young, 575 U.S. 206, 207, 135 S. Ct. 1338, 1342.).

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) only applies to your company if you have 50 employees on the payroll within 75 miles of the location where the employee works. The FMLA applies to pregnancy if there are medical conditions that meet the statutory definition of a serious health condition. And even then, the employee must be eligible for leave by having worked at a company for at least 1,250 hours in the past 12-month period). If the FMLA is applicable to a medical condition of pregnancy, follow your FMLA policy and the applicable regulations.

The Pennsylvania Human Rights Act

The Pennsylvania Human Rights Act (PHRA) is a state law that generally requires the same protections as the PDA. However, the state law applies to companies with four or more employees, ensuring it casts a wider net than the PDA alone.

The Americans with Disabilities Act

Pregnancy is not a disability. Do not treat women who are pregnant as if they are disabled. This type of paternalistic treatment of women can result in a violation of the ADA, as well as Title VII. There are conditions of pregnancy that may qualify as a disability, and in those instances, it is the obligation of the employee to request accommodation. In that case, you apply the principles that guide an ADA analysis, using the interactive process to determine what if any accommodation will allow the employee to perform the essential functions of the job.

Other things that can be helpful, include

1. Provide short term disability insurance as a voluntary or employer-subsidized benefit. Particularly for jobs with a high degree of physicality, this takes a burden off both the employer and the employee.
2. Craft your PTO and your employee training to consider reasonable life occurrences. Chintzy PTO policies not only buck the trend in human resources but are a short-sighted approach to employee management. Conversely, make sure that employees are expected to manage their time like adults taking into account the foreseeable needs and requirements of their personal lives. This means say and print these expectations clearly.
3. Be aware that for unionized workforces you should consult your contract before assigning work or changing schedules. However, the union is also responsible for lawful treatment of workers. Discuss with the union your efforts to accommodate a pregnant worker, or any worker with a short-term disability, and expect it to be a partner in that effort.
4. Use your common sense. If you can do something simple, for example adjust a uniform requirement, get a maternity fit for a pregnant employee who requests it, just do it. If you throw up roadblocks to what is by all account a commonsense request, you are more likely to have an employee who is mistrustful, fearful of losing a job and antagonistic to the employer.

Being accused of pregnancy discrimination could have significant consequences for you and your company. Consider attorney’s fees, potential damages, disruption of work, and negative publicity. Thus, you must take all steps necessary to avoid these accusations in the first place.

At N. Stotler Law, in Pittsburgh, Pennsylvania, an employer legal support professional can help you carefully review your current policies to ensure you are not accidentally committing pregnancy discrimination. If you have already been accused of doing so, we can offer the effective defense you need. Learn more about how we can help by contacting us online or calling us at 724-841-5565.