DISCRIMINATION COMPLAINTS SEEK TO CLARIFY PREGNANT WOMEN’S RIGHTS

Two recent complaints filed with the U.S. EEOC seek to clarify the rights of pregnant women under a 2008 amendment to the Americans with Disabilities Act.  Both complaints were brought by pregnant women who said they were denied reasonable accommodations for pregnancy-related disabilities.  Since 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees.

In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy-related impairments, and the EEOC issued regulations codifying the act in March 2011.

In a complaint filed Thursday, Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome. Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash.  After Crosby submitted a note from a chiropractic neurologist attesting to pregnancy-related carpal tunnel syndrome, the hospital said the information needed to come from her obstetrician. Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm.

Several supervisors refused her requests for work with limited lifting, and she was involuntarily placed on unpaid leave under the Family and Medical Leave Act.  According to the complaint, which was filed by the National Women’s Law Center, other hospital employees who had suffered injuries or were otherwise unable to complete aspects of their jobs had been accommodated.

A separate complaint filed in January by the American Civil Liberties Union alleges that United Parcel Service Inc failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.  In August, the company offered her a light-duty position on the condition that it would not count toward seniority or benefits, an offer she described as “unlike, and worse than UPS’s accommodation of other, non-pregnant employees.”

Typically, the EEOC attempts to mediate between the parties, and if that fails it investigates the claim. If the investigation finds that a law has been violated, the EEOC can settle, sue or, in some cases, refer the case to the Department of Justice. If no violation is found, the aggrieved party can still sue privately.

But in its three-year strategic enforcement plan, released in December 2012, the agency identified accommodating pregnancy-related limitations under ADAAA and the PDA as an “emerging issue.”

With little case law on the books since the regulations were issued in March 2011, employers are in uncharted waters, said Stacie Caraway, an employment lawyer at Miller & Martin PLC in Chattanooga, Tennessee, who is not involved in either case. For example, she said, it is difficult to tell whether the hospital’s request for additional documentation was unreasonable.

Employers should be “conservative” and lean toward accommodating workers where possible, Caraway said. “If the proof shows that someone has a pregnancy-related disability, then the employer does have a duty to accommodate it as with cancer or any other disability.”

The two cases highlight changes in the legal landscape since the Americans with Disabilities Amendments Actwas passed. In a 2008 case filed a few months before the law came into effect, the 4th U.S. Circuit Court of Appeals ruled that the Pregnancy Discrimination Act did not require UPS to accommodate pregnant worker Peggy Young by offering her light duty, despite offering it to workers injured on the job.

Cara Greene, a co-chair of Outten & Golden’s Family Responsibilities and Disability Discrimination practice group in New York, said these cases highlight how the PDA and the ADAAA interact to require accommodations that the court denied to Young.  ”Employers are missing the fact that just because a disability results from pregnancy, it doesn’t mean they don’t have to accommodate it,” Greene said.

Legislation to codify these obligations has stalled. The Pregnant Workers Fairness Act, introduced last year in Congress, would require employers to make the same types of accommodations for pregnancy, childbirth and related medical conditions as they do for disabilities. It is due to be reintroduced this spring, according to a spokeswoman for the National Women’s Law Center.

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To read the full article by Anna Louie Sussman, visit: Thomson Reuters News & Insight 

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