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The best way to prevent pregnancy discrimination is to know the law and engage with mothers-to-be.
When Anycia Grady, a clinical social worker, became pregnant in September 2013, her happiness was tempered by concern about the stress that her 12-hour-a-day job could have on her pregnancy. Grady provides support services to foster families in the Cleveland area. It’s a role she describes as stressful and exhausting but rewarding.
By the end of October, the stress was enough for Grady’s doctor to write a note to her employer recommending that she limit her hours to eight each day. Maternal stress in the early months of pregnancy can affect fetal brain development and can lead to low birth weight and preterm labor, according to a 2009 study published in BJOG: An International Journal of Obstetrics and Gynaecology.
Grady made the request to her supervisor and the HR director, and they asked her to track her hours and activities, along with keep notes on how she felt, for three weeks. She complied, but she was still working 12-hour days a month later. Her manager said any accommodation could result in a salary reduction.
"I told my manager that I am so overwhelmed and have so much anxiety over the health of my baby," Grady says. Although he listened, he told her he didn’t know how she could cover her cases in eight hours. "I took that to mean that I had two choices: keep my current pay and put my baby at risk, or do what I need to do to protect my baby and take the pay cut," she says.
After hearing frightening news at her first ultrasound appointment, she took matters into her own hands. "The baby wasn’t growing on schedule and wasn’t showing enough movement," she recalls. "I marched into my office and said, ‘I am cutting my hours, and you can tell me later if it affects my pay.’ I was done waiting for them to figure it out."
Stories like Grady’s are not uncommon. "Pregnant women often are forced to make an impossible choice," says Emily Martin, vice president and general counsel at the National Women’s Law Center (NWLC) in Washington, D.C. Women must decide between losing income at a time they can least afford it and risking their health and pregnancy.
Women must decide between losing income at a time they can least afford it and risking their health and pregnancy.
The NWLC has teamed up with the organization A Better Balance to capture stories on pregnancy discrimination, Martin says. "These are stories of pregnant women who needed temporary accommodation at work but were pushed to take unpaid leave or quit their job altogether when an easy accommodation would have sufficed," explains Martin, who co-authored the June 2013 report It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers. "In too many workplaces, the culture seems to be automatic rejection of pregnancy accommodation requests."
Pregnancy accommodation rights in the workplace are covered by the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act, and the Americans with Disabilities Act Amendments Act (ADAAA).
The ADAAA, which broadened the definition of "disability" under the Americans with Disabilities Act (ADA) to include more temporary, less severe conditions, has had the biggest impact on pregnancy accommodation. "While Congress didn’t specify pregnancy-related conditions in the amendments, they became covered by virtue of the expanded definition," says Brian McDermott, a partner at the law firm Ogletree Deakins in Indianapolis. "Because more conditions are now covered, plaintiffs’ lawyers are more optimistic about their chances of winning pregnancy discrimination cases—and thus more claims are filed."
In fiscal year 2011, the U.S. Equal Employment Opportunity Commission (EEOC) received 5,797 charges of discrimination alleging pregnancy discrimination, up from 4,901 in 2006. Discrimination happens in all sectors, but accommodation seems more of an issue in service industries. One-third of pregnancy discrimination claims—more than 15,200 cases—filed between 1996 and 2005 were in education, health care, leisure and hospitality, and other services, reports the National Partnership for Women & Families.
To help prevent pregnancy discrimination, the EEOC’s Strategic Enforcement Plan identified accommodating pregnancy-related limitations under the ADAAA and PDA as one of its top six priorities for fiscal years 2013 to 2016.
"Employers have a duty to know the law and to follow it," says Delner Franklin-Thomas, district director for the EEOC’s Birmingham, Ala., district office. "Women have the right to work, including during pregnancy. The EEOC will continue to use appropriate means to protect this right."
The most common problem in the first trimester of pregnancy is nausea, "especially in the food service industry, because food smells can trigger the nausea," says Marjorie Greenfield, an obstetrician and gynecologist in Cleveland. She says back pain and sciatica are common in the later months of pregnancy.
Medical opinion on what pregnant women can and should do has changed over the decades. Now, "We encourage more activity throughout the pregnancy, and, even in pregnancies with complications, we have medications that are much more effective than bed rest," says Greenfield, author of The Working Woman’s Pregnancy Book (Yale University Press, 2008).
The environments that are best suited to pregnancy are ones where the employee makes a variety of movements but is able to rest as needed, Greenfield explains.
By contrast, jobs that are not optimal are those like nursing, in which women must stand for hours and cannot control when they take breaks or eat. "Interestingly, jobs where the woman is required to sit in a small area all day are also bad for pregnancy," she notes.
In positions where there is a high risk of exposure to chemicals or radiation, the usual Occupational Safety and Health Administration practices apply. "For example, if a woman is working in a lab and must wear gloves and a mask, those precautions are adequate while pregnant, too," Greenfield says.
The most common accommodation requests she hears about are from cashiers who stand all day in one place. "A stool to sit on for short periods makes a huge difference," she says. "But many employers have policies stating that cashiers must stand, and that’s when I need to intervene." Greenfield generally recommends that women be able to sit for at least 10 minutes each hour.
The NWLC’s Martin believes that managers’ lack of knowledge is the main cause of pregnancy discrimination claims—something HR professionals can rectify. "Uninformed line managers are making these calls in the moment, and employees accept their manager’s decision because they don’t know any better, either," she says.
McDermott agrees: "We deal with very sophisticated and knowledgeable HR professionals in our business, and it’s rarely HR people who misinterpret the law."
He encourages his HR clients to provide regular training on relevant regulations and pregnancy-bias liability, as well as on how to engage in an interactive process once an accommodation request is made. He also recommends documenting these conversations and any performance issues unrelated to the pregnancy.
Engaging in an interactive dialogue with employees to come to a reasonable accommodation shows that employers are making a good-faith effort to comply with the law and can result in no punitive damages, even if an employer loses a lawsuit.
Engaging in an interactive dialogue with employees to come to a reasonable accommodation shows that employers are making a good-faith effort to comply with the law.
"The EEOC and the courts look closely at the interactive process documentation to see what was offered and who broke off the dialogue first," McDermott says. "Did the employee refuse an accommodation without offering up another one, or did the employer ignore the employee’s reasonable suggestions?"
Corporate HR at Jeld-Wen, a window and door manufacturer with 20,000 employees globally, has stepped up its managerial training on the interactive process, the PDA and the ADAAA, says Jennifer Patterson, SPHR, director of human resources at the Oregon-based company.
"Prior to our extra training, managers were overly cautious when dealing with pregnant employees," Patterson says. "I used to get calls from managers, especially on the production side, in a panic because an employee was pregnant and they didn’t know whether she was allowed to work at all." Patterson advises that the employee can work normally until she asks the manager for an accommodation or until it becomes clear that she is having difficulty.
Employers can get into trouble if they make decisions on behalf of their pregnant employees, warns Maria Greco Danaher, a partner in Ogletree Deakins’ Pittsburgh office. For example, it is discriminatory for a machine-shop manager to move a pregnant woman to a lower-paying desk job because he decides the environment is too dangerous for her.
"Managers have to be careful about projecting their unconscious biases about pregnant women—that they can’t work or are emotional or can’t lift any amount of weight," Danaher says.
An overzealous reaction to Peggy Young’s pregnancy announcement caused what she feels was an unnecessary push to take unpaid leave in 2006. After working as a UPS driver for seven years, Young informed the manager of the Landover, Md., facility where she worked that she was pregnant. The manager referred Young to a company nurse, who said she needed a doctor’s note outlining her restrictions. Young delivered mostly lightweight packages and envelopes and didn’t believe she needed any restrictions. "My doctor thought it was an odd request, but she wrote a general note about not lifting anything over 20 pounds," she says.
When Young supplied the note, the UPS health nurse manager said the delivery service’s policy stated that jobs involving lifting lightweight objects couldn’t be assigned to people with conditions incurred outside of work. "My manager said I was a liability and to come back to work when I was no longer pregnant," recalls Young, who was 14 weeks pregnant at the time and lost her pay and health benefits. She never appealed to corporate HR because she "assumed the health nurse and manager knew the policy and were implementing it correctly."
Young remained on unpaid leave until her daughter was born. She then filed a claim in federal court alleging that her employer violated the PDA by failing to accommodate her. In 2011, a district court ruled in favor of UPS—a decision affirmed in January 2013 by the 4th U.S. Circuit Court of Appeals. The court held that UPS’s policy of providing accommodations to employees with disabilities, workers injured on the job and those who had lost their commercial driver’s license was a pregnancy-blind rule that did not violate the PDA. The Supreme Court did not take up the case.
Had Young’s situation occurred after the ADAAA was enacted, she likely would have won, according to the NWLC.
On Oct. 1, 2013, Young’s home state of Maryland enacted the Reasonable Accommodations for Disabilities Due to Pregnancy Act, which grants pregnant workers accommodations similar to those afforded to employees with temporary physical limitations.
"Legislative action is more possible at the state and local level, and we will see more of this legislation in the future," Martin says. The multiple levels of legislation make things more confusing for managers and HR professionals, she notes.
As more ADAAA claims make their way through the system, it will become clearer what constitutes pregnancy discrimination. "Right now we’re in this initial phase of interpretation by the court system of the ADAAA, so it’s a little inconsistent," Danaher says. "For instance, in some [court] districts morning sickness is a disability, and in others it is not."
According to the U.S. Department of Labor’s Job Accommodation Network (JAN), which provides resources to employers on accommodating workers with disabilities, accommodation ideas include:
Strategies to meet physical demands,such as lifting aids, temporary reassignment of duties, reserved parking, stools, ergonomic chairs, reassignment to less physically demanding jobs, and alternate workstations.
Schedule shifts,such as flexible arrival time; periodic rest, food, water and bathroom breaks; telecommuting; a less physically demanding shift; limited overtime; and flexible use of leave.
Policy modifications,such as exceptions to a dress code as well as relaxed "no food or drink" and "no-sitting" policies.
For now, the best way for an employer to handle a request for accommodation is the same way it handles any disability request under the ADA.
"The manager should ask himself, ‘What would the process be if the employee had a back injury or needed adjustments to her work schedule for cancer treatments?’ " Martin says. The response should be the same for pregnant employees.
That’s why HR folds accommodation for pregnancy-related disabilities into disability training. At Jeld-Wen, the process begins by reviewing state or local requirements. Then, HR must engage in an interactive process, explore all possible accommodations and choose the best one for the employee and employer. Once the accommodation is implemented, it’s important to monitor the situation and make adjustments as needed.
The interactive process is ongoing, Patterson notes. "We want our employees to keep working if they can safely, so we will continuously re-evaluate a leave situation with the employee and her physician."
Employers don’t want managers to overstep by introducing an accommodation when it’s not necessary—which could be perceived as showing bias against the employee’s ability based solely on her pregnancy. However, ignoring someone who is clearly having difficulty performing isn’t advised, either.
Job descriptions come in handy, Danaher says. If a pregnant employee verbalizes that she’s having trouble, HR should have her discuss her job description with her doctor, focusing on the tasks affecting her pregnancy and accommodations that might help, Danaher advises. "The employer has the right to choose which accommodation best meets the need of the organization," she notes.
"I have found that employers are worried about setting a precedent if they let one woman have a stool" to sit on, Greenfield says. "But a doctor’s note explaining why the accommodation is crucial to the employee’s health and her baby’s health and the fact that it is temporary usually alleviates that concern."
Tim Seifert is proactive about involving the employee’s doctor and getting specific guidance. "We’ve learned from past experience that doctors sometimes write generic notes stating that patients can’t be on their feet or lift heavy objects," says the vice president of HR for California at Kellwood Co. in City of Industry, Calif. "Well, how long can they stand? How much can they lift?"
Kellwood, which has 1,400 employees, manages multiple clothing brands from design to production to distribution and sales. With so many types of workplaces and jobs, Seifert finds that some accommodations are simple and others aren’t. "We haven’t had a situation where we couldn’t handle an accommodation request; it just takes more creativity," he says.
Only when all possible accommodations have been found inadequate by the employer or employee should HR suggest unpaid leave, Martin says. "FMLA leave is an option, but it should be the final resort because this leave is unpaid."
Once an employee gives birth and returns to work, HR must ensure that she isn’t retaliated against for requesting accommodation. "Employers have tended to fare worse in retaliation cases than in accommodation refusals," Martin notes.
"If people are treated differently because they’ve gone out on FMLA leave or exercised their right for accommodation, employers are open to expensive claims," Danaher warns. "Documentation and training can’t be emphasized enough."
"If people are treated differently because they’ve gone out on FMLA leave or exercised their right for accommodation, employers are open to expensive claims."—Maria Greco Danaher, Ogletree Deakins
Companies have paid tens of thousands of dollars to settle pregnancy discrimination and retaliation claims. In 2012, Olive Branch, Miss.-based Landau Uniforms paid $80,000 to settle such a claim. That same year, Engineering Documentation Systems in Las Vegas paid $70,000 for refusing an accommodation request and then terminating the employee while she was on leave.
"In a lot of instances, it would be cheaper for the employer to accommodate the employee’s minor requests," Martin notes. "Training managers is also more cost-effective to prevent discrimination and retaliation and to minimize legal risks."
As for Anycia Grady, the social worker who was worried about how her 12-hour workdays would affect her pregnancy, it’s not yet clear what she will be able to work out with her employer. But HR professionals can ensure their own happy ending by educating themselves and providing common sense accommodations to their expectant employees.
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