EEOC targets employers for pregnancy discrimination

Posted by Charles Middleton on 10/06/2017

Q: Recently, the Equal Employment Opportunity Commission filed two different lawsuits against employers alleging pregnancy discrimination. What is the basis of the first lawsuit?

A: On Aug. 17, the EEOC filed suit in the Southern District of California alleging that Tarr Inc. and Zenith LLC violated federal law when it terminated an employee shortly after learning of her pregnancy. The EEOC also contends that the defendants also terminated other pregnant employees or refused to allow employees to return to work after taking maternity leave. In the lawsuit, the EEOC seeks back pay, compensatory and punitive damages, and injunctive relief aimed at preventing discrimination in the future.

Q: What's the basis of the second lawsuit?

A: On Aug. 22, the EEOC filed suit in the Eastern District of Wisconsin alleging that Silverado Oak Village and Silverado Senior Living Inc. violated Title VII and the Pregnancy Discrimination Act when it terminated a pregnant employee and refused to provide her with needed light-duty tasks that were made available to employees who were injured on the job. As with the other lawsuit, the EEOC seeks back pay, compensatory and punitive damages, and injunctive relief aimed at preventing discrimination in the future.

Q: What is the EEOC's history regarding pregnancy discrimination?

A: In 2014, the EEOC issued an Enforcement Guidance on pregnancy discrimination which it further revised in June of 2015. Two key issues in these revisions address evidence of pregnancy discrimination and providing light duty to pregnant employees. The EEOC states that evidence that an employer's neutral policy places a burden on pregnant employees can be proof of pregnancy discrimination. With regard to light duty, pregnant employees must be treated the same as other employees affected by temporary medical conditions.

Q: What does the EEOC's guidance mean for employers?

A: A pregnant employee must be allowed to keep her job as long as she is able to perform her duties. Typically, a normal pregnancy is not a disability covered by the Americans with Disabilities Act. However, a pregnancy-related impairment that substantially limits activities can be a disability under the ADA. If an employer offers other workers easier duties for a limited time when they are unable to perform their regular jobs, the employer must offer the same accommodation to pregnant workers experiencing pregnancy-related complications. Additionally, employers must engage in the interactive process under the ADA to determine if the pregnant employee needs a reasonable accommodation. For example, the employer should consider offering modified tasks, changing the physical features of a workplace, providing more frequent breaks or alternative assignments, or offering disability leave or leave without pay. Additionally, if the employee is unable to work due to pregnancy-related complications, leave under the Family and Medical Leave Act should be offered if the employee qualifies for such leave.

Q: What types of rules may an employer make regarding a pregnant employee's ability to return to work?

A: An employer can't regulate how much time a pregnant employee must take off work either before or after childbirth if she is able to perform her job. If an employee is absent for a pregnancy-related condition and recovers, the employer can't force her to remain on leave until the baby's birth. Employers also can't have a rule prohibiting a return to work for a predetermined length of time after childbirth. Moreover, employers can't take away credit for previous years worked, accrued retirement benefits or seniority because of maternity leave. Additionally, once an employee returns to work at an employer with more than 50 employees, nursing mothers must be provided reasonable break time to express breast milk.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, October 5, 2017