According to the EEOC’s 2012 Strategic Enforcement Plan pregnancy discrimination, particularly when it applies to discrimination on the basis of a pregnancy related disability, is a major target for investigation in 2013 and beyond.
We all know that under Title VII, as amended by the Pregnancy Discrimination Act, it is illegal to discriminate against pregnant women in all categories of employment. You cannot refuse to hire, promote, train, reward, etc. on the basis of whether a female employee is pregnant, regardless of where she is in her pregnancy. But what happens when in addition to the pregnancy there is an associated disability caused by a complication of the pregnancy? The EEOC’s guidance sheet on Pregnancy Discrimination says:
“Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).”
Thus in this situation you are not only dealing with pregnancy discrimination you are also dealing with an ADA situation that requires a different level of attention. As the guidance says “The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.”
Under the amendment acts dealing with a disability is much more complicated than what it used to be. First, under the ADA, pregnancy disability would have been considered to be too short term to qualify. That is not the case under the ADAAA. According to David Woodard and Robert Meyer of Poyner Spruill LLP, “With the possibility that more medical conditions and complications arising from pregnancy will now fall within the definition of disability under the ADAAA, employers must be more cognizant of when an obligation to consider and provide reasonable accommodation to employees with a pregnancy-related disability arises.” They point out that these accommodations “might include leaves of absence, job reassignment, light duty, or job modifications.” Since the EEOC has listed this an emerging and developing issue it is important for employers to get this right.
One of the key elements under the ADAAA is what is called an “interactive discussion.” This is where the company conducts a documented back and forth discussion with the employee or applicant on what reasonable accommodation might be needed. This may even include something you might not normally offer someone in a non-disability situation. The decision point rests on whether you end up deeming the requested accommodation to be “reasonable” or not. This takes into account costs and disruptions the accommodation may entail. The interactive discussion must be documented and the arguments used to claim it to be unreasonable must be detailed to show their business justification.
So be aware of issues that may be presented to you by your pregnant employee. She does not have to come and use the language of “reasonable accommodation” in order to indicate she is looking for an accommodation.
Hat tip to Messrs. Woodward and Meyer for their material.