Wednesday, 04 November 2015 10:22

Pregnancy discrimination in employment

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NEW CONSIDERATIONS FOR PREGNANT EMPLOYEES IN 2015
    Since August 30, 2015, the definition of qualified individual with a disability in the Nebraska Fair Employment Practice Act (“NFEPA”)includes an employee or job applicant who is pregnant, has given birth and or has experienced related medical conditions and who has a known limitation.  Neb. Rev. Stat. §48-1102(17) and §48-1107(2).  The definition of reasonable accommodation has also been amended to include the following as reasonable accommodations for an employee or job applicant who is pregnant, has given birth or has a related medical condition: “acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk.” Neb. Rev. Stat. § 48-1102(11).
If a job applicant or employee is pregnant, has given birth, or has a related medical condition, it is considered discrimination for the employer to do any of the following:


1.    Limit or segregate the job applicant or employee on that basis in a way that would adversely affect the opportunities or status of the job applicant or employee;

  1.  Contract or agree with any other organization, such as an employment agency, labor union, or fringe benefit provider (such as a health insurer), in such a way as to discriminate against an employee or job applicant;
  2.  Using any standards or criteria that have the effect of discriminating on the basis of pregnancy, childbirth, or related medical conditions;
  3.  Failing to make reasonable accommodations to the known physical limitations unless the employer can demonstrate an undue hardship on the operation of business;
  4.  Denying employment opportunities to a job applicant or employee because the employer does not want to provide a reasonable accommodation for known limitations;
  5.  Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual, unless the standard, test, or criteria is shown to be job-related for the position and s consistent with business necessity; or
  6.  Conducting a medical exam or asking questions of a job applicant as to whether the job applicant is pregnant, has given birth, or has a related medical condition, except it is permissible for an employer to ask about a job applicant’s ability to perform the job functions and to test for illegal drug use.
    Prior to this amendment to NFEPA in 2015, sex discrimination had been defined to include pregnancy, childbirth, or related conditions.  The inclusion of pregnancy, childbirth, or related conditions in the definition of qualified individuals with disabilities expands the definition of discrimination for women who are pregnant, have given birth, or have related medical issues.  It is not acceptable to fail to provide a reasonable accommodation because of the temporary nature of pregnancy, childbirth, or related medical conditions.  But the amendment does provide the employer with the ability to determine the essential functions of the position.  If the essential functions are included with the job posting, those will be considered as proof of the functions of the job.  The employer also still has undue burden on the business operations to a request for an accommodation as an available defense to a request for an accommodation from any qualified employee with a disability.
    On March 25, 2015, the U.S. Supreme Court reversed a summary judgment granted in UPS’ favor in a pregnancy discrimination claim brought under Title VII in the case of Young v. UPS.  Title VII was amended in 1978 to include discrimination on the basis of pregnancy, childbirth, or related medical illnesses as sex discrimination.  The second clause of the Title VII amendment provides: employers must treat “women affected by pregnancy . .the same for all employment purposes. . .as other persons not so affected but similar in their ability or inability to work.”
    Peggy Young was a part-time delivery truck driver for UPS and was restricted from lifting more than 20 pounds during the first 20 weeks she was pregnant, and restricted to 10 pounds for the remainder of her pregnancy.  UPS required its drivers to lift up to 70 pounds.  UPS advised Ms. Young that she could not work with that lifting restriction.  Ms. Young sued UPS claiming sex discrimination.  Ms. Young pointed out that UPS found light duty work for workers who were injured on-the-job; who were disabled; and who lost their Department of Transportation (“DOT”)Certification.  UPS argued that since Ms. Young did not suffer from an on-the-job injury, was not disabled, and did not lose her DOT Certification, and that she was being treated the same as any other employee who did not fall in these categories.  Since Ms. Young was claiming disparate treatment discrimination the Court used the McDonnel Douglas v. Greene framework.  On remand, the Court directed the trial court that the correct factors to consider in Ms. Young’s prima facie case were:
    1.    She was a member of a protected class, she was pregnant;
    2.    That she sought accommodation;
    3.    That the employer did not accommodate her;
    4.    The employer did accommodate other employees similar in their ability or inability to work.
    If Ms. Young proves a prima facie case, the burden than shifts to UPSto show that it has a legitimate, non-discriminatory reason for treating employees outside the pregnant class better.  Ms. Young would then have the opportunity to rebut the employer’s reason as being not the true reason but a pretext for discrimination.
        The evidence revealed that UPS had made accommodations for many employees who had suffered both on-the-job and off-the-job injuries with similar lifting restrictions.  One UPS shop steward admitted that UPS routinely made accommodations for most employees with the exception of pregnant employees.  The Court decided that there was a sufficient issue of fact for the matter to go to a jury to decide.
        If you have questions about how to respond to an employee’s request for an accommodation we would be glad to visit with you.
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