Regulations Regarding Accommodation for Pregnant Employees

A Walk Down Memory Lane with SMC President Sandy Seay

In 1964, Congress passed the Civil Rights act that included prohibitions on discrimination in employment, housing and other areas. The section dealing with employment was called Title VII and prohibited discrimination on the basis of race, color, religion, sex or national origin. However, when Congress was debating the bill prior to its passage, the term “sex” was not included. At the last minute, Representative Howard Smith, Democrat of Virginia, introduced a one word amendment to the bill – “sex.” Many observers believe that he did this hoping to thwart the bill’s passing. Nevertheless, Congress passed the bill anyway and the effect was, while there was plenty of narrative about the other areas of prohibited discrimination, that there was little to no information regarding what Congress might have meant by “sex discrimination.” That’s one reason for the lengthy evolution of the concept of sex discrimination.

In the meantime, lots of questions about sexual harassment remained unresolved, including whether sexual harassment was a form of sex discrimination prohibited by Title VII and, as one might expect, lawsuits abounded and the matter went to court. In 1980, the Equal Employment Opportunity Commission ruled that sexual harassment is indeed a form of sex discrimination and, for the most part, the courts agreed, although there was still wide disagreement on what kind of behavior constituted sexual harassment. Then, in 1991, Clarence Thomas was nominated to be a Justice of the U.S. Supreme Court. The confirmation process was fairly routine, as these things go but, toward the end of the hearings, a brouhaha ensued when Anita Hill accused him of engaging in sexual harassment while he was Chair of the Equal Employment Opportunity Commission. Hearings were held day and night, pundits opined in different directions, panels were called, and politicians pontificated. Mr. Thomas was ultimately confirmed as a Justice of the Supreme Court but the issue of sexual harassment was now front and center. Today, employers have policies prohibiting sexual harassment and HR departments and HR consultants conduct management training sessions on how to avoid sexual harassment at work. Employers take complaints of sexual harassment seriously and investigate allegations quickly and thoroughly.

Which brings us to the question of pregnancy and whether pregnancy discrimination was unlawful under Title VII. For the most part, prior to 1978, pregnancy was not considered sex discrimination. When I got out of the Army and went to work for Burlington Industries in early 1970, I was taught, as a “personnel” management trainee (the term Human Resources did not gain wide acceptance until the 1980s), that we did not hire pregnant employees because shortly after we hired them they would have to be absent from work for the birth of the child. In fact, one of the questions on many employment application forms was, “Are you pregnant or do you plan to become pregnant?” In addition, most employers at that time had a “Maternity Leave” policy separate and apart from medical leave, which lasted a standard 6 weeks. In early 1970, my wife Linda, an experienced teacher in the USA and in Europe, applied for a teaching position at Washington County, Virginia, School System and was told she could not be hired because she was 5 months pregnant.

Interesting Comments from SMC Sr. VP Mike Willis

“My parents met when they were in the Navy during WWII. Soon they married and it wasn’t long before my mother became pregnant with my oldest sister. Back during those days pregnant women were not allowed to continue serving in the armed forces, even if they were not assigned to a combat zone. Upon learning of my mother’s “condition” she was automatically honorably discharged from the Navy, despite her objections. As my mother recollected, the reason was listed as “for the convenience of the government.

Today, the Navy does not generally consider pregnancy on active duty or reserve an impediment for continued service. Therefore, a request to be discharged will normally be denied, unless it’s determined to be in the best interest of the Navy. Just goes to show, times have certainly changed!”

An Example of “Undue Hardship” by SMC Sr. VP Dan Ragan

“I was talking to one of our clients last week about a pregnant employee in the fourth month. This client is in the food service industry and the employee was a kitchen worker. The employee went to the Doctor and came back with a return slip with restrictions of no prolonged standing and no lifting over two pounds. The no prolonged standing restriction could be dealt with by providing a stool or periodic breaks to sit, but the two pound limit was the clincher. When you put that in perspective, a gallon of milk weighs about five pounds, a grocery store size bag of shredded cheese could weigh over three pounds, and a number ten size can of pork and beans weighs 6.8 pounds. In this case, the accommodation for no lifting over two pounds could not be met.”

The issue was not decided fully until 1978 when Congress passed the Pregnancy Discrimination Act. As a result, pregnancy was officially designated as a protected category and employers must treat pregnancy like any other illness or disability. Thus, we have no more individual Pregnancy Leave or Maternity Leave – we have a Medical Leave covering illness, pregnancy and related conditions.

Sandy was working for a national management consulting firm at the time and he recalls the firm publishing a newsletter about the new pregnancy discrimination requirements. The title of the article was something like, “The Pregnancy Discrimination Act – the Latest Employment Nightmare!” Within a matter of days, the President of the consulting firm received a strongly worded letter from the administrator of a large hospital in Tennessee, advising him that neither she nor any of her female counterparts regarded the PDA as a “nightmare,” but as a greatly needed benefit to pregnant workers. Lesson learned. Apology offered. Article rewritten.

All of which brings us to the present day and the latest pregnancy requirements for employers as described in the Pregnant Workers Fairness Act (PWFA). According to these regulations which go into effect on June 27, 2023, all employers of 15 or more employees must make “reasonable accommodation” to qualified applicants and employees who are experiencing temporary physical or mental limitations due to pregnancy, childbirth or related conditions, unless the accommodation would impose an “undue hardship” on the employer. This is the same “reasonable accommodation” requirement we find in the Americans With Disabilities regulations. The “undue hardship” standard has always been tough to identify so employers who rely on it must fully and clearly document the reasons why an accommodation is an undue hardship.

Examples of accommodations that employers might make include:

  1. Additional rest room breaks.
  2. Reducing lifting requirements.
  3. Providing leave for employees not covered by FMLA.
  4. Provide a place for pregnant employees to sit and rest.
  5. Providing additional daily work breaks.
  6. Reduced hours of work.
  7. Allowing pregnant employees to come in later and leave earlier.
  8. Relief from certain job duties.

You can think of other accommodations but the principle here is that employers should accommodate the needs of pregnant workers if at all possible. If it is not possible to make accommodation, employers should make sure they can point to a solid, well documented “undue hardship.”

In addition, we recommend that all employers add a new or revised policy to their employee handbook, clearly stating that they will make accommodations for pregnant workers. It is important to understand that this requirement applies not only to pregnancy but to childbirth itself and to conditions related to pregnancy. Management does have the right to require a doctor’s statement but should do so carefully and graciously.

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