Pregnancy Discrimination EEO Exchange Web-Based Training

Welcome to the EEO Exchange.  The title for this webinar is “Pregnancy Discrimination.”  This is an emerging area of EEO law that impacts many workplaces.  This webinar was initially presented on September 21, 2016.  The purpose of the EEO Exchange is to create an online forum that promotes and encourages the exchange of EEO-related knowledge and information.  We want to strengthen the knowledge base of the commonwealth’s EEO community and promote collaboration, understanding and idea generation.  The objectives of this webinar are to provide an overview of the Pregnancy Discrimination Act, a federal law which prohibits pregnancy discrimination in the workplace.  We will also identify the major areas of pregnancy discrimination within the workplace.  Finally, we will discuss how to investigate and analyze allegations of pregnancy discrimination in a complaint.  Let’s get started.  So, why is this topic important to us as EEO Officers and Specialists?  It is well known that women today are more likely to work while pregnant.  Research shows that in the early 1960s, less than half of women who were pregnant worked either part time or full time.  By the early 21^st century, nearly 2/3 of women who were pregnant with their first child worked either part time or full time.  While pregnant employees are as productive as anyone else in the workplace, there is also greater likelihood that they will experience discrimination, whether intentional or not.  Data from the Equal Employment Opportunity Commission (EEOC) and other similar state civil rights agencies across the United States shows that in fiscal year 1997, there were 3,977 charges alleging pregnancy discrimination.  That same year, $5.6 million in monetary benefits were awarded to complainants.  By fiscal year 2011, the last year available for this data, claims of pregnancy discrimination significantly increased to 5,797 and the monetary benefits tripled to $17.2 million.  We are now going to review the Pregnancy Discrimination Act in more detail.  The Pregnancy Discrimination Act is a federal statute which was enacted in 1978.  It amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination as a form of sex discrimination in the workplace.  We want to emphasize this point; pregnancy discrimination is a form of sex discrimination.  While pregnancy is not specifically mentioned in Executive Order 2016-04, Equal Employment Opportunity, as a protected class, commonwealth policy prohibits sex discrimination; therefore, pregnancy discrimination is also prohibited.  In June 2015, the EEOC issued enforcement guidance on pregnancy discrimination which cited two fundamental requirements of the Pregnancy Discrimination Act.  First, an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions.  Second, women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.  The definition of pregnancy under the PDA is expansive.  Of course, the Act protects employees from discrimination based on a current pregnancy.  But the Act also covers additional areas.  An employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions.  For instance, a female employee who gives birth to a child, but who is terminated while she is on leave soon after the birth of the child, could file a pregnancy discrimination complaint if this employee can allege a connection between her childbirth and/or her use of medical leave and her termination.  The PDA also protects female employees from discrimination based on potential or intended pregnancy.  Women must not be discriminated against on the job in any way based on their capacity to get pregnant.  We will have more details on this on the following slide.  Finally, an employer may not discriminate against a woman with a medical condition related to pregnancy or childbirth and must treat her the same as others who are similar in their ability or inability to work but are not affected by pregnancy, childbirth, or medical conditions related to pregnancy.  Note, “medical conditions” also includes lactation and breastfeeding.  We’ve discussed the definition of pregnancy as it relates to current pregnancy and past pregnancy.  Now, let’s discuss the issue of discrimination based on potential or intended pregnancy.  No employer can justify job restrictions or the refusal to hire or assign particular jobs for women with childbearing capacity, unless the restriction is a Bona Fide Occupational Qualification (or BFOQ).  A BFOQ is a qualification or a particular attribute for a job that is essential to that particular job.  An example of where an employer in the commonwealth could sustain a BFOQ would be a corrections facility.  A policy of hiring only men for close-contact positions in an all-male maximum security prison, to avoid the risk of sexual assault for female employees, has been upheld as a valid BFOQ.  We need to emphasize any BFOQs based on sex are very rare.  An example of how hard it is for an employer to justify BFOQs toward women based on potential pregnancy is found in this 1991 Supreme Court Case, International Union, UAW v. Johnson Controls.  In this case, the employer, which manufactured batteries using hazardous materials, barred women of childbearing age from certain jobs due to potential harm that could occur to a fetus.  The female employees who were barred from these jobs sued the company.  The Court ultimately ruled that the employer's restriction against fertile women performing "dangerous jobs" constituted sex discrimination.  The Court further ruled that the employer's fetal protection policy could be justified only if the ability to bear children was a bona fide occupational qualification (BFOQ) for the job.  The fact that the job posed risk to fertile women did not, in and of itself, justify barring all fertile women from the position.  Questions often come up about whether or not pregnancy can be considered a disability.  Pregnancy in and of itself is not a disability.  However, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the Americans with Disabilities Act (ADA) and Management Directive 205.25, Disability Related Employment Policy.  For example, conditions such as gestational diabetes and preeclampsia, even though they may be temporary in nature, may qualify as disabilities under the ADA.  In those situations, an employer may not discriminate against an individual whose pregnancy-related impairment is a disability under the ADA and must provide an individual with a reasonable accommodation if needed because of a pregnancy-related disability, unless the accommodation would result in an undue hardship or pose a direct threat.  If your agency receives a request from an employee for an accommodation because she is pregnant, even if the disability is not clear, it should not be denied.  As always, enter into the interactive process with the employee to get more information and to provide assistance as needed.  Further, if the employee who is pregnant does not have a disability as defined by the ADA or commonwealth policy, an employer may still need to provide an accommodation to that employee if accommodations are being provided to persons who have similar restrictions, such as light duty, for a temporary impairment or a work injury.  This will be discussed later in the webinar.  Let’s go back to the basics and look at which theories of discrimination would apply.  What theory of discrimination would be used to investigate claims of pregnancy discrimination when it is alleged that an employee who was pregnant and was qualified for the position, suffered an adverse employment action due to her pregnancy and also alleged that similarly situated employees, who were not pregnant, were treated better?  Would it be disparate treatment, harassment or reasonable accommodation?  The correct theory would be disparate treatment.  Remember in disparate treatment cases the employee needs to allege that others who are similarly situated were treated more favorably.  However, if an employee who is pregnant alleges that she is the recipient of unwanted name-calling, slurs, or derogatory statements based on her pregnancy that are either severe or pervasive, then the investigative theory of harassment will be used.  Finally, the theory of reasonable accommodation is used only when an employee who is pregnant is denied a reasonable accommodation due to a disability related to her pregnancy.  These theories were covered in prior webinars and also in other EEO trainings.  For a refresher, you may want to check out the LSO version of the EEO Exchange titled, “Theories of Discrimination.”  Now that we have covered some information about pregnancy discrimination, we are going to listen to a scenario and answer a few questions.  Mary is a Division Director in Agency A.  She has been in this position for three years and has had performance reviews ranging from commendable to outstanding.  She shared with John, the Bureau Director, in passing that she and her husband wanted a child and she was trying to get pregnant.  John responded with displeasure, because Mary’s division was tasked with important initiatives over the next year.  Six weeks later, at the time of her new evaluation, John rated her poorly and then told Mary, due to her poor performance, she was being moved from Division Director to a Program Analyst, a demotion of a few pay grades.  Mary objected to this, and stated that her performance was better than her fellow Division Directors.  However, John said she should be lucky she was able to keep her job due to her poor performance.  He also added that it would be a “less stressful” job and would be in her best interest of her health to take these new assignments as she wanted to get pregnant.  What is Mary’s protected class?  Mary’s protected class in this scenario would be sex, female, due to Mary’s intention to be pregnant.  What is the act(s) of harm in this scenario?  Mary had a poor performance review and a demotion.  What theory of discrimination would be used to analyze the evidence?  It would be disparate treatment as Mary alleges that other Division Directors with worse performance than her, but not pregnant, did not receive poor performance reviews and were not demoted.  Finally, who would be similarly situated to Mary?  It would be other Division Directors who report to the Bureau Director, John.  Let’s find out a little more about the PDA.  The PDA 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.”  In other words, female employees who are pregnant must be treated the same as those similarly situated employees who are not pregnant.  This clause of the PDA had been for many years open to interpretation, especially when pregnant employees requested light or modified duty during their pregnancy.  Our next scenario will address the meaning of this clause.  Peggy had been employed for five years as a part-time delivery driver for a parcel company.  The position required that she be able to lift up to 70 pounds.  Peggy became pregnant and provided a doctor’s note saying that due to her pregnancy, she could not lift more than 20 pounds, but could perform all other duties.  She requested light duty for the lifting restriction.  The employer refused.  Peggy objected; saying that the employer had provided light duty for others, primarily males, who were injured on the job for many years.  The employer responded that this was irrelevant, because Peggy was not injured on the job, so she was not entitled to any light duty.  Peggy was placed on an unpaid leave of absence.  She subsequently filed a complaint with the EEOC.  The company challenged her complaint, claiming that because Peggy could not lift 70 pounds, she was not qualified to perform the job.  Would disparate treatment, harassment or reasonable accommodation be used as the theory of discrimination to analyze this complaint?  The theory of discrimination used would be disparate treatment.  In this scenario, Peggy is a member of the protected class sex, female (pregnant); is qualified, having worked for the company for five years; suffered two adverse actions (denied light duty and placed on leave of absence); and alleged that others who were not pregnant were given light duty.  Harassment is not correct, because the complaint does not allege any type of harassment and reasonable accommodation is not correct, because while light duty is similar to a reasonable accommodation, reasonable accommodation theory is only used when an accommodation is denied for disability or religion.  In this scenario, Peggy is pregnant, which in and of itself is not a disability.  However, if Peggy requested light duty due to a disability that was connected in some way to her pregnancy, then the reasonable accommodation theory would be used.  We are now going to review the actual case this scenario was based on.  The scenario we just discussed was based on a 2015 U.S. Supreme Court case, Young v. UPS.  The court ruled that a pregnant employee can raise a claim of disparate treatment, including the denial of light duty, using the McDonnell Douglas framework.  Remember from the EEO Exchange titled, “Disparate Treatment,” under the McDonnell Douglas framework an employee must establish a prima facie case of discrimination.  Once this is established the employer can provide a legitimate non-discriminatory reason for the action and then the burden of proof returns to the employee to show that this reason was a pretext for discrimination.  In this case, Peggy Young was a member of the protected class, qualified, denied light duty, and alleged that the employer provided light duty on a temporary basis to similarly situated employees who were not pregnant and also unable to perform all their duties.  Originally, lower level federal courts ruled in favor of the employer.  The Supreme Court; however, ruled that Ms. Young stated a viable claim of pregnancy discrimination and remanded her case back to the federal courts for re-argument using the McDonnell Douglas framework.  Ultimately this case was settled but the terms of the agreement were not specified.  We do know that as a result UPS adopted a new pregnancy accommodation policy, which makes temporary light duty work available to all pregnant employees with medically certified lifting or other physical restrictions.  The policy reflects pregnancy-specific laws recently enacted in a number of states where UPS conducts business, and is consistent with the new guidance on pregnancy-related accommodations issued by the Equal Employment Opportunity Commission last year.  In summary, we first provided an overview of the Pregnancy Discrimination Act and its provisions.  The PDA makes it unlawful for an employer to discriminate against an employee on the basis of pregnancy, childbirth or related medical condition.  We learned that pregnancy discrimination is a form of sex discrimination and that the act protects employees from discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy and medical conditions related to pregnancy.  Second, we identified the major areas of pregnancy discrimination within the workplace.  We discussed what constitutes a Bona Fide Occupational Qualification or BFOQ and learned that BFOQs based on sex are very rare.  We emphasized that employers must provide reasonable accommodations for pregnancy related disabilities and treat woman affected by pregnancy the same for all employment related purposes as other persons not so affected.  And third, we also examined how to investigate and analyze allegations of pregnancy discrimination.  We examined different scenarios and determined what theory would apply in each case.  Using the disparate treatment theory, the employee would need to show she was a member of the protected class, qualified, harmed and allege that similarly situated employees were treated better.  For the theory of harassment, an employee would need to show that she was subjected to unwanted name-calling, slurs or derogatory statements and for reasonable accommodation the employee would need to show that she was denied an accommodation due to a disability that is related to pregnancy.  This can be a complex topic.  To assist you, there are resources available.  The EEOC is one, including its website, www.eeoc.gov.  In particular, the EEOC has issued Enforcement Guidance on pregnancy discrimination and related issues, effective June 2015.  The commonwealth’s civil rights enforcement agency, the Pennsylvania Human Relations Commission (PHRC), is another resource.  The Job Accommodation Network, part of the U.S. Department of Labor, provides ideas for reasonable accommodations in the workplace for persons who have disabilities, including pregnancy-related disabilities.  Finally, the OA-EEO Division is a resource that you can use at any time.  Thank you!  You have now completed the EEO Exchange, Pregnancy Discrimination course.  If you have questions at any time, please contact the Office of Administration’s Equal Employment Opportunity Division at 717.783.1130.  This version of the course is intended for individuals who require an accommodation for a disability.  Once you have fully reviewed the information in this training, contact your Human Resources Office to request credit for completing this course.  You will not receive credit for completing this course until you do so.