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Pregnancy Likely to Be Added to Short List of Required Employment Accommodation

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Most federal and state employment discrimination laws prohibit any kind of adverse personnel action based upon any of the enumerated protected categories, e.g., race, sex, national origin, age, etc.  Currently, only two federal discrimination laws go further and, not only prohibit discrimination, but also require covered employers to take affirmative steps to provide workers with reasonable accommodations.  These two current protected categories are workers claiming a disability covered by the Amended Americans With Disabilities Act (“AADA”) and workers seeking an accommodation due to their religious beliefs.

Last week, the Pregnant Workers Fairness Act (“PWFA”) was reintroduced in Congress with bi-partisan support.  See H.R. 1065 Fact Sheet.  Most commentators are predicting that this new employment requirement will pass with the current make-up of Congress and be signed into law by the new President.

If this occurs, then private sector employers covered by Title VII (15 or more employees) will be required to provide reasonable accommodations to pregnant workers and job applicants, unless the employer can prove that such a requested accommodation would impose “an undue hardship” on the employer’s ability to operate its business (the same standard applicable to requested disability and religious accommodations).  This “undue hardship” burden of proof is often a difficult one for employers to meet.

The new proposed federal law would be enforced by the Equal Employment Opportunity Commission (“EEOC”), as well as through private lawsuits following exhaustion of the administrative process.  Like current disability and religious accommodations, PWFA accommodations will likely need to be addressed on an individual, case-by-case basis through a documented “interactive process.”  The EEOC will also likely, in time, publish a list of pregnancy accommodations it deems to be “reasonable.”  Violations of the PWFA will likely expose employers to the same potential damages currently available under Title VII, i.e., lost pay and benefits, compensatory damages dependent upon the employer’s number of employees ($50,000 through $300,000) and attorneys’ fees.

Most employers are already cautious regarding their handling of requested accommodations from pregnant employees.  This is, no doubt, because experience has proven that pregnant employees and returning veterans are probably the two most inherently sympathetic potential plaintiffs among the many protected groups under current employment discrimination laws.  The PWFA, if enacted as anticipated, will provide pregnant employees with additional, significant leverage.