On Monday the EEOC issued an enforcement guidance
memo which goes into considerable detail regarding the laws prohibiting pregnancy
discrimination in the workplace. Of particular interest are the sections
dealing with the requirement that employers offer reasonable accommodations
to pregnant workers.
The Pregnancy Discrimination Act of 1978 (PDA) states that an employer
may not discriminate against an employee on the basis of pregnancy, childbirth,
or related medical conditions. However, many employers claimed that it
did not require them to make reasonable accommodations for pregnant workers.
For example, if a pregnant worker's job required her to stand for
long periods, the employer would fire the worker if she was temporarily
unable to do so rather than provide her with a chair.
Such an approach does not take into account the Americans with Disabilities
Act, along with the amendments made to the act in 2008. The memo states
that "although pregnancy itself is not an impairment within the meaning
of the ADA, and thus is never on its own a disability, some pregnant workers
may have impairments related to their pregnancies that qualify as disabilities
under the ADA, as amended."
According to the memo
A pregnant employee may be entitled to reasonable accommodation under the
ADA for limitations resulting from pregnancy-related conditions that constitute
a disability or for limitations resulting from the interaction of the
pregnancy with an underlying impairment. A reasonable accommodation is
a change in the workplace or in the way things are customarily done that
enables an individual with a disability to apply for a job, perform a
job's essential functions, or enjoy equal benefits and privileges
of employment. An employer may only deny a reasonable accommodation to
an employee with a disability if it would result in an undue hardship.
An undue hardship is defined as an action requiring significant difficulty
Let say, for example, a female employee has a pre-existing neurological
disability that has been managed successfully with medication for years.
Without the medication, she would be unable to complete her work due to
severe fatigue. But with the medication, as long as she takes rest breaks
at times scheduled for all employees, she is fine. She becomes pregnant,
and she must be taken off her medication because of the risks imposed
to a pregnant woman. As a result, she experiences increased fatigue, and
asks her employer for more frequent breaks. As long as there is no undue
hardship to the employer, under the law he would have to grant such an
The memo gives examples of reasonable accommodations, such as:
- Redistributing marginal functions that the employee is unable to perform
due to the disability. Marginal functions are the non-fundamental (or
non-essential) job duties.
- Altering how an essential or marginal job function is performed (e.g.,
modifying standing, climbing, lifting, or bending requirements).
- Modification of workplace policies
- Purchasing or modifying equipment and devices
- Modified work schedules
- Granting leave (which may be unpaid leave if the employee does not have
accrued paid leave) in addition to what an employer would normally provide
under a sick leave policy for reasons related to the disability.
- temporary assignment to a light duty position
If you are pregnant and feel you have been the victim of discrimination
in New York, contact the attorneys at Schwartz Perry & Heller LLP. We can
help you enforce your rights under the law.