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Law on Pregnancy Discrimination and Breastfeeding

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Tom Spiggle

The document summarizes employment law regarding pregnancy and related conditions discrimination. It discusses the Pregnancy Discrimination Act and related case law. It also covers accommodations required under the Americans with Disabilities Act, the Family and Medical Leave Act, sex stereotyping claims under Title VII, and relevant state laws in Virginia, DC, and Maryland.

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Employment Law: Pregnancy and Related Conditions Discrimination FBA CLE Tom Spiggle, Partner The Spiggle Law Firm tspiggle@spigglelaw.com www.spigglelaw.com
Pregnancy Discrimination Act History of PDA Who is covered? Employee discriminated against because of or on the basis of pregnancy, childbirth, or related medical conditions Employer: 15 or more persons Stating Your Prima Facie Case Membership in a protected class Adverse employment action Otherwise qualified for the position 4th Cir. - Replaced by someone outside of protected class Exception: Circumstances giving rise to an inference of discrimination
Recent 4th Circuit case Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005): Plaintiff filed suit after being terminated from Dell, who replaced her with a non-pregnant woman. The Court held that she could establish a prima facie case of sex and pregnancy discrimination even though her replacement was in the same protected classes as her. Brief discussion about how a woman is not necessarily in the same protected class as another woman who is pregnant.
PDA Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015) Plaintiff sued her employer for not accommodating her because her pregnant status excluded her from the classes covered by its limited duty restriction. The Court held that the plaintiff may proceed with her argument under the PDA. Accommodations for conditions not covered by the ADA
PDA cont. Question Post Young Who are the other persons not so affected but similar in their ability or inability to work to which a plaintiff should make her comparison?
PDA cont. Litigation Tips File administrative charge! Focus on damages Lost wages Still at work? Mitigation Emotional Distress Liability Comparators ADA/PDA Look for available state claims, particularly ones with no damage caps
PDA cont. Success Rates under PDA Litigation Worklife Law Report 52% of Family Responsibilities cases prevail Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016 http://worklifelaw.org/publications/Caregivers-in-the- Workplace-FRD-update-2016.pdf
Breastfeeding and Expressing Breast Milk at Work Is it a condition related to pregnancy? Recent case law says Yes, EEOC v. Houston Funding II Ltd, 717 F.3d 425 (5th Cir. 2013). Based on a plain language argument Yes, Allen-Brown v. District of Columbia, 174 F.Supp.3d 463 (D.D.C. 2016). Cites Houston Fundings definition of a medical condition Yes, Gonzalez v. Marriott, Intl, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015). Relies in part on EEOC Guidance
Breastfeeding cont. Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253 (11th 2017): Plaintiff brought a PDA claim based on her employers decision to reassign her to the patrol division after learning of her pregnancy. The Court held that the employers actions were in fact discriminatory, and violated the PDA. Expressing milk by PDA Under the PDA, an employer is not required to provide special accommodations for expressing milk. However, Tuscaloosas refusal to provide the accommodation effectively caused Ms. Hickss constructive discharge. Application of Young v. UPS The Court says that the plaintiff may prove discrimination by showing that where the employer denied her request for an accommodation, it granted the same to another similarly situated employee.
Breastfeeding cont. Right to pump breast milk under the ACA FLSA Amendment (r) Reasonable break time for nursing mothers (1) An employer shall provide (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
Americans with Disabilities Act and Workplace Accommodations Who is covered? Employee: physical or mental impairment that substantially limits a major life activity. One or more major bodily systems You must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation Employer: 15 or more employees Stating Your Prima Facie Case Individual with a disability Not reasonably accommodated or experienced an adverse employment action Plaintiff is otherwise qualified Circumstances giving rise to an inference of discrimination
ADA, cont. Coverage expanded under ADA-AAA (2008) Construe disability broadly Regarded as claims focus more on treatment by employer because of an impairment, and less on the employers belief about the nature of the impairment Substantially limits is construed more broadly, and the requirement for limit to functionality is lower An episodic impairment or one in remission can be a disability
ADA and Workplace Accommodations Good Faith Negotiations with Employees
ADA and Workplace Accommodations Doctors notes are key Worklifelaw.org
Family Medical Leave Act Background Who is Covered? Employee: completed at least 12 months of service Employer: 50 employees or more 12 weeks unpaid leave Legal Liability Interference Retaliation No requirement to file at the EEOC
FMLA Pregnancy specifically covered Family Medical Leave Act, 5 U.S.C. 則 6382 Leave Requirement (a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following: (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter
Sex Stereotyping and Sex-Plus Claims under Title VII Failure to act in accordance with sex stereotypes Requirements Same as under the PDA EEOC Filing Plaintiff is covered both before and after baby arrives
Sex Stereotyping cont. Examples Pregnant women should not work. A woman with children should not get a promotion to a position that requires a lot of travel. A man should not take full paternity leave, even if the company offers it.
Sex Stereotyping cont. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Price Waterhouse withdrew the plaintiff from consideration for a partnership position based partially on her conduct, which according to some influential employees, was unbefitting a woman. The Court held that sex-stereotyping could be the basis of a sex discrimination claim. After Price Waterhouse Jesperson v. Harrahs Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) Harrahs enforced a new requirement that female employees wear makeup, and the plaintiff refused. Harrahs subsequently terminated her, so she brought a claim under Title VII. The Court held that the policy was not discriminatory as it did not place an unequal burden on female employees. Lewis v. Hearltand Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010) The plaintiff sued her employer under Title VII, citing sex discrimination based on her non-conformance to gender stereotypes. The Court holds that summary judgment in favor of the defendant was improper.
Sex Stereotyping cont. Men too! Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001) The Court allows the plaintiff to assert a sex discrimination claim based on gender stereotyping where plaintiffs coworkers frequently insulted him because of his homosexuality. Wilson v. Cable News Network, Inc., 211 Cal. Rptr.3d 724 (Cal. Ct. App. 2016) Plaintiff who took five weeks paternity leave was later terminated and brought suit under Californias Fair Employment and Housing Act.
Sex Stereotyping cont. State protections vary greatly. Depending on the jurisdiction, Plaintiff may have access to discrimination claims based on: Sexual orientation (DC, MD) Marital status (DC, VA, MD) Gender Identity or Expression (DC, MD) Personal appearance (DC)
State Laws Virginia Human Rights Act Employer: 6 to 14 employees Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502 (Va. 1997). The plaintiff sued her former employer for wrongful discharge. This case predates VHRA protection from gender discrimination, so the Court allowed the plaintiff to bring the case as a Bowman claim. she had been terminated because she was no longer dependable since she had delivered a child . . . [her] place was at home with her child; that babies get sick sometimes and [she] would have to miss work to care for her child; and that [Scott-Gallagher] needed someone more dependable.
State Laws Virginia Fairfax County Human Rights Ordinance Section 11-1-5. Unlawful practices - Employment. (a) It shall be unlawful for any employer on the basis of age, race, color, religion, sex, national origin, marital status, or disability: (1) To refuse to hire an individual for employment; (2) To discharge an employee; (3) To deny an employee any opportunity with respect to hiring, promotion, tenure, apprenticeship, compensation, terms, upgrading, training programs, or other conditions or privileges of employment; or (4) To prevent an individual from taking a competitive examination or otherwise deny any benefits pertaining to the grading or processing of applications with respect to any aspect of employment; Section 11-1-20. Non-exclusive remedy. Damages (Not Monetary!) Redress of injury Injunctive relief
State Laws D.C. D.C. Human Rights Act 則 2-1401.11. Prohibitions. (a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual (1) By an employer - To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee; Employer: at least one employee Protecting Pregnant Workers Fairness Act Effective: 2014 Employer: at least one employee Scope: Covers pregnancy discrimination and accommodations Differs from federal law in that it REQUIRES employers to provide reasonable accommodations to an employee whose ability to perform her job is limited by pregnancy, childbirth, a related medical related condition, or breastfeeding. Applies regardless of the employers treatment of other employees with short term disabilities
State Laws Maryland Md. Code. State Government Title 20 Employer: 15 or more employees Reasonable Accommodations for Disabilities Due to Pregnancy States response to the Fourth Circuits ruling in Young v. UPS. Effective October 1, 2013 Mirrors the Youngs interpretation of the PDA
Web Resources www.worklifelaw.org Abetterbalance.org www.nwlc.org www.mwela.org www.nela.org

More Related Content

Law on Pregnancy Discrimination and Breastfeeding

  • 1. Employment Law: Pregnancy and Related Conditions Discrimination FBA CLE Tom Spiggle, Partner The Spiggle Law Firm tspiggle@spigglelaw.com www.spigglelaw.com
  • 2. Pregnancy Discrimination Act History of PDA Who is covered? Employee discriminated against because of or on the basis of pregnancy, childbirth, or related medical conditions Employer: 15 or more persons Stating Your Prima Facie Case Membership in a protected class Adverse employment action Otherwise qualified for the position 4th Cir. - Replaced by someone outside of protected class Exception: Circumstances giving rise to an inference of discrimination
  • 3. Recent 4th Circuit case Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005): Plaintiff filed suit after being terminated from Dell, who replaced her with a non-pregnant woman. The Court held that she could establish a prima facie case of sex and pregnancy discrimination even though her replacement was in the same protected classes as her. Brief discussion about how a woman is not necessarily in the same protected class as another woman who is pregnant.
  • 4. PDA Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015) Plaintiff sued her employer for not accommodating her because her pregnant status excluded her from the classes covered by its limited duty restriction. The Court held that the plaintiff may proceed with her argument under the PDA. Accommodations for conditions not covered by the ADA
  • 5. PDA cont. Question Post Young Who are the other persons not so affected but similar in their ability or inability to work to which a plaintiff should make her comparison?
  • 6. PDA cont. Litigation Tips File administrative charge! Focus on damages Lost wages Still at work? Mitigation Emotional Distress Liability Comparators ADA/PDA Look for available state claims, particularly ones with no damage caps
  • 7. PDA cont. Success Rates under PDA Litigation Worklife Law Report 52% of Family Responsibilities cases prevail Caregivers in the Workplace: Family Responsibilities Discrimination Litigation Update 2016 http://worklifelaw.org/publications/Caregivers-in-the- Workplace-FRD-update-2016.pdf
  • 8. Breastfeeding and Expressing Breast Milk at Work Is it a condition related to pregnancy? Recent case law says Yes, EEOC v. Houston Funding II Ltd, 717 F.3d 425 (5th Cir. 2013). Based on a plain language argument Yes, Allen-Brown v. District of Columbia, 174 F.Supp.3d 463 (D.D.C. 2016). Cites Houston Fundings definition of a medical condition Yes, Gonzalez v. Marriott, Intl, Inc., 142 F. Supp. 3d 961 (C.D. Cal. 2015). Relies in part on EEOC Guidance
  • 9. Breastfeeding cont. Hicks v. City of Tuscaloosa, Alabama, 870 F.3d 1253 (11th 2017): Plaintiff brought a PDA claim based on her employers decision to reassign her to the patrol division after learning of her pregnancy. The Court held that the employers actions were in fact discriminatory, and violated the PDA. Expressing milk by PDA Under the PDA, an employer is not required to provide special accommodations for expressing milk. However, Tuscaloosas refusal to provide the accommodation effectively caused Ms. Hickss constructive discharge. Application of Young v. UPS The Court says that the plaintiff may prove discrimination by showing that where the employer denied her request for an accommodation, it granted the same to another similarly situated employee.
  • 10. Breastfeeding cont. Right to pump breast milk under the ACA FLSA Amendment (r) Reasonable break time for nursing mothers (1) An employer shall provide (A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and (B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
  • 11. Americans with Disabilities Act and Workplace Accommodations Who is covered? Employee: physical or mental impairment that substantially limits a major life activity. One or more major bodily systems You must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation Employer: 15 or more employees Stating Your Prima Facie Case Individual with a disability Not reasonably accommodated or experienced an adverse employment action Plaintiff is otherwise qualified Circumstances giving rise to an inference of discrimination
  • 12. ADA, cont. Coverage expanded under ADA-AAA (2008) Construe disability broadly Regarded as claims focus more on treatment by employer because of an impairment, and less on the employers belief about the nature of the impairment Substantially limits is construed more broadly, and the requirement for limit to functionality is lower An episodic impairment or one in remission can be a disability
  • 13. ADA and Workplace Accommodations Good Faith Negotiations with Employees
  • 14. ADA and Workplace Accommodations Doctors notes are key Worklifelaw.org
  • 15. Family Medical Leave Act Background Who is Covered? Employee: completed at least 12 months of service Employer: 50 employees or more 12 weeks unpaid leave Legal Liability Interference Retaliation No requirement to file at the EEOC
  • 16. FMLA Pregnancy specifically covered Family Medical Leave Act, 5 U.S.C. 則 6382 Leave Requirement (a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following: (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter
  • 17. Sex Stereotyping and Sex-Plus Claims under Title VII Failure to act in accordance with sex stereotypes Requirements Same as under the PDA EEOC Filing Plaintiff is covered both before and after baby arrives
  • 18. Sex Stereotyping cont. Examples Pregnant women should not work. A woman with children should not get a promotion to a position that requires a lot of travel. A man should not take full paternity leave, even if the company offers it.
  • 19. Sex Stereotyping cont. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Price Waterhouse withdrew the plaintiff from consideration for a partnership position based partially on her conduct, which according to some influential employees, was unbefitting a woman. The Court held that sex-stereotyping could be the basis of a sex discrimination claim. After Price Waterhouse Jesperson v. Harrahs Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) Harrahs enforced a new requirement that female employees wear makeup, and the plaintiff refused. Harrahs subsequently terminated her, so she brought a claim under Title VII. The Court held that the policy was not discriminatory as it did not place an unequal burden on female employees. Lewis v. Hearltand Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010) The plaintiff sued her employer under Title VII, citing sex discrimination based on her non-conformance to gender stereotypes. The Court holds that summary judgment in favor of the defendant was improper.
  • 20. Sex Stereotyping cont. Men too! Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864 (9th Cir. 2001) The Court allows the plaintiff to assert a sex discrimination claim based on gender stereotyping where plaintiffs coworkers frequently insulted him because of his homosexuality. Wilson v. Cable News Network, Inc., 211 Cal. Rptr.3d 724 (Cal. Ct. App. 2016) Plaintiff who took five weeks paternity leave was later terminated and brought suit under Californias Fair Employment and Housing Act.
  • 21. Sex Stereotyping cont. State protections vary greatly. Depending on the jurisdiction, Plaintiff may have access to discrimination claims based on: Sexual orientation (DC, MD) Marital status (DC, VA, MD) Gender Identity or Expression (DC, MD) Personal appearance (DC)
  • 22. State Laws Virginia Human Rights Act Employer: 6 to 14 employees Bailey v. Scott-Gallagher, Inc., 480 S.E.2d 502 (Va. 1997). The plaintiff sued her former employer for wrongful discharge. This case predates VHRA protection from gender discrimination, so the Court allowed the plaintiff to bring the case as a Bowman claim. she had been terminated because she was no longer dependable since she had delivered a child . . . [her] place was at home with her child; that babies get sick sometimes and [she] would have to miss work to care for her child; and that [Scott-Gallagher] needed someone more dependable.
  • 23. State Laws Virginia Fairfax County Human Rights Ordinance Section 11-1-5. Unlawful practices - Employment. (a) It shall be unlawful for any employer on the basis of age, race, color, religion, sex, national origin, marital status, or disability: (1) To refuse to hire an individual for employment; (2) To discharge an employee; (3) To deny an employee any opportunity with respect to hiring, promotion, tenure, apprenticeship, compensation, terms, upgrading, training programs, or other conditions or privileges of employment; or (4) To prevent an individual from taking a competitive examination or otherwise deny any benefits pertaining to the grading or processing of applications with respect to any aspect of employment; Section 11-1-20. Non-exclusive remedy. Damages (Not Monetary!) Redress of injury Injunctive relief
  • 24. State Laws D.C. D.C. Human Rights Act 則 2-1401.11. Prohibitions. (a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual (1) By an employer - To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee; Employer: at least one employee Protecting Pregnant Workers Fairness Act Effective: 2014 Employer: at least one employee Scope: Covers pregnancy discrimination and accommodations Differs from federal law in that it REQUIRES employers to provide reasonable accommodations to an employee whose ability to perform her job is limited by pregnancy, childbirth, a related medical related condition, or breastfeeding. Applies regardless of the employers treatment of other employees with short term disabilities
  • 25. State Laws Maryland Md. Code. State Government Title 20 Employer: 15 or more employees Reasonable Accommodations for Disabilities Due to Pregnancy States response to the Fourth Circuits ruling in Young v. UPS. Effective October 1, 2013 Mirrors the Youngs interpretation of the PDA
  • 26. Web Resources www.worklifelaw.org Abetterbalance.org www.nwlc.org www.mwela.org www.nela.org

Editor's Notes

  • #20: Insert Moonlight/LalaLand joke The Oscars wasnt the first time Price Waterhouse got it wrong I know thats corny, but I couldnt help it.