Understanding Pregnancy Discrimination: A Case Study and Guidance for Employers

How employers deal with pregnancy and related medical conditions can create legal liabilities. It also says a lot about the company culture and whether it is a great place to work. And for employers who are prolife, it makes an important statement about how they support life. It’s hard to celebrate life and be a grouch about the process God uses to bring it into the world.

Case Study: Walgreens’ Pregnancy Discrimination Lawsuit

The Equal Employment Opportunity Commission (EEOC) claimed that Walgreens had committed pregnancy and disability discrimination when it refused emergency medical leave to a pregnant employee. A pregnant customer sales associate, who also had diabetes and hypoglycemia, needed unscheduled emergency leave due to spotting. The manager insisted that she could not leave until a replacement was found. The manager said she had had too many accommodations already. Since they couldn’t find a replacement, the employee resigned immediately to get medical care. Sadly, she miscarried that day.

The EEOC argued that Walgreens violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. In the end, they settled, with an agreement that included $205,000. The agreement also required Walgreens to work on anti-discrimination policies, conduct employee and supervisor training on discrimination laws, and submit regular reports to the EEOC.

EEOC Guidance on Pregnancy Discrimination

On a related note, the EEOC recently updated its guidance on pregnancy discrimination and accommodation, based on the Pregnant Workers Fairness Act (PWFA). (The PWFA relates to accommodations only, and other laws address discriminatory termination.)

• The PWFA applies to employers with more than 15 employees (but many state and local laws may apply to smaller employers).
• Employers must consider reasonable accommodations for employees affected by pregnancy, childbirth, or related medical conditions, unless these accommodations create an undue hardship.
• An undue hardship causes significant difficulty or expense to the employer.
• An employee who cannot perform the essential functions of the job may still be eligible for accommodations if the inability is temporary, there are reasonable accommodations available, and the situation will change “in the near future.”
• Determining a reasonable accommodation requires an interactive process.
• Unlawful discrimination includes failing to make accommodations, denying employment opportunities because of accommodation needs, and mandating leave when other accommodations are feasible.
• It is illegal to retaliate against employees for requesting accommodations or participating in discrimination complaints/processes.
• Possible accommodations may include: flexibility around breaks, flexibility around food and water policies, changes in work stations for comfort, changes in uniforms, flexible work hours/locations, temporary assignments, (unpaid or paid) leave, and flexibility for medical appointments.
• The employer shouldn’t ask for medical information when the need is for an accommodation is obvious. But it can ask for medical information about the need for more detailed accommodations such as weight limitations, time off, work functions, etc.

Steps Employers Should Take

To comply with the law, employers should consider the following steps:

1. Policy Review and Update: Regularly update policies so they comply with the latest federal, state, and local laws about pregnancy and disability rights.
2. Employee Training: Conduct training sessions for all employees, particularly managers and HR personnel, on the rights of pregnant employees and the process for handling accommodation requests.
3. Have a Clear Accommodation Process: Establish a transparent process for employees to request accommodations. This process should include an interactive dialogue between the employer and employee to find a practical and reasonable solution. It should include analysis of job functions, undue hardship, and how temporary the situation will be.
4. Monitor and Enforce Policies: Actively monitor the workplace and enforce policies consistently. Establish a complaint procedure that protects employees from retaliation.
5. Regular Communication: Keep lines of communication open with pregnant employees to adjust accommodations as needed. Pregnancy can lead to changing physical and medical conditions that may need different accommodations over time. More information may be needed in the interactive process to evaluate undue hardship and difficulty for the employer and reasonable accommodations for the employee. Being pregnant is not carte blanche for the employee to come and go as she pleases.
6. Documentation and Compliance: Document all accommodation requests and actions taken. Also document how the employee complies with any agreements about accommodations. For example, if she has leave for medical appointments, but needs to give notice, she should not simply fail to show up at work. Documentation will be crucial for compliance audits and potential legal defenses.

Conclusion

The PWFA is facing its own legal challenges, but it seems that most of its principles are likely to apply on way or another. And they can be summed up as, “Be kind.”

Pregnancy and related conditions can create a difficult and emotional season for women experiencing them. Employers should support them not just for legal reasons, but also as part of treating employees well and creating a good work culture. And dialogue and clarity are needed not just to support the worker, but also so the employer doesn’t experience undue hardship. If the situation seems complicated or tense, it’s wise to involve legal counsel early. A situation that is already difficult may result in a bad snap decision, like the one in the Walgreens case.