Spokane Journal of Business

Federal rules update pregnancy-discrimination safeguards

Guidance lifts awareness here of worker protections

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-—Mike McLean
Keller Allen, a labor and employment attorney here, says the new federal guidance regarding the Pregnancy Discrimination Act provides insight into how regulators plan to enforce the law.

Recent enforcement guidance issued by the Equal Employment Opportunity Commission signals that the federal agency is targeting pregnancy-related discrimination as an area of emphasis, say knowledgeable observers, who add that Washington state also has robust antidiscrimination and family leave laws.

The new 39-page guidance document provides a greater degree of clarity for employers about the rights of employees, says Keller W. Allen, a Spokane labor and employment lawyer who handles employment discrimination cases.

“There’s certainly a heightened awareness with the guidelines,” Allen says. “The guidance is not the law, but it gives good insight in how the agency in charge of enforcing the federal law views things.”

He says the guidance provides several examples to which employers can compare their own situations in regard to pregnancy-related issues involving employees.

In future investigations of pregnancy discrimination complaints, he says, “The EEOC is going to consider what it said in the guidance.”

Allen mostly represents employers in employment-discrimination cases, although he says he’s currently representing one plaintiff in a pregnancy-discrimination complaint.

The updated guidance outlines antidiscrimination policies developed during the last 30 years, including when employer actions might constitute illegal discrimination and the obligation of employers to provide pregnant workers equal access to benefits.

“I think the guidance helps by providing examples,” Allen says, adding, “It helps lawyers give advice about it.”

The fundamental tenets of the Pregnancy Discrimination Act prohibit employers from discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions. The act also requires employers to treat women affected by those conditions the same as other employees with a similar ability or inability to work.

The new guidance also describes how the Pregnancy Discrimination Act interacts with other federal legislation, including the Americans with Disabilities Act and the Family and Medical Leave Act.

The Pregnancy Discrimination Act was approved by Congress in 1978 to expand discrimination prohibited by the Civil Rights Act of 1964, and the guidance was last formally updated in 1983.

The Family and Medical Leave Act, which was enacted in 1993, requires employers to provide leave for a parent to bond with a newborn, adopted, or foster child.

Elaine Fischer, Olympia-based spokeswoman for the Washington state Department of Labor and Industries, says state law regarding family leave goes beyond the federal law.

Under the federal law, a woman is allowed 12 weeks for maternity leave and family leave combined,” Fischer says.

In Washington, medical leave is separate from family leave, she says.

“Washington law allows medical leave plus 12 weeks of family leave,” Fischer says. “The clock doesn’t start on the family leave until a doctor declares the mother is physically able to work.”

Leave doesn’t have to be paid, but the law guarantees the employee can return to work, Fischer says.

Businesses with fewer than 50 employees are exempt from family-leave requirements, but likely still must provide reasonable accommodations—which could include leave—for pregnancy-related disabilities, Fischer says.

“Maternity disab-ility is a protected condition,” she says.

Depending on the case, other reasonable accommodations could include reassigning employees to light duty, relieving them on nonessential tasks, and modifying their work areas.

Pregnancy itself isn’t considered a disability, but pregnant workers can have pregnancy-related impairments that qualify as disabilities under the Americans with Disabilities Act, the EEOC says, even if the impairments are temporary, such as gestational diabetes and pregnancy-related blood pressure issues and nerve pain.

Rules for providing accommodations for employees with disabilities apply to most employers with eight or more employees.

L&I regulates family leave on the state level, while the state Human Rights Commission handles pregnancy and pregnancy-related disability discrimination complaints, Fischer says.

The Human Rights Commission has a Spokane office, although its staff doesn’t keep regular hours here.

Laura Lindstrand, an Olympia-based policy analyst with the commission, says she fields questions regarding pregnancy and pregnancy disability policies from throughout the state.

“If an employer wants information, they would call the main Olympia number and be routed to me,” she says. “An employee with a discrimination complaint also would need to call the main number and get started in the intake office.”

She says pregnancy and pregnancy-related disability inquiries are some of the most common calls she gets.

“Employers call and ask if they have to hire a pregnant job applicant,” Lindstrand says, adding, “In most cases, they can’t deny an applicant because of pregnancy.”

Another common question from employers is whether they can force a pregnant woman to take medical leave.

“You can’t put anyone on medical leave without their doctor’s recommendation,” she says. “An employer can’t make that decision or terminate an employee because of pregnancy.”

Employers often don’t understand that they can violate the Pregnancy Discrimination Act through actions they consider compassionate, she says, adding that it would be a violation to remove a woman from a job thinking they are doing her a favor.

On the other hand, if an employer observes anyone with a disability, including a pregnant woman, who is unable to do certain aspects of the job, the employer can require that the employee provide medical information, or clearance for the job.

“It’s got to be consistent,” she says. “If you have someone with a heart problem and you don’t take action, but you take action with someone who’s pregnant, that would be discrimination.”

The EEOC says the majority of Pregnancy Discrimination Act disputes involve claims of job dismissals based on pregnancy. Other charges include allegations of unequal treatment by employers of pregnant employees compared to treatment of nonpregnant employees, including closer scrutiny, harsher discipline, medical examination and release requirements, and forced leave.

The EEOC says in the 39-page enforcement-guidance document that complaints of pregnancy discrimination have risen sharply since the Pregnancy Discrimination Act went into effect. Last year, 5,342 charges were filed with the EEOC and with state and local fair-employment practices agencies throughout the U.S., up 77 percent from 3,900 complaints in 1997.

The increase in complaints far outpaces the increase in women in the workforce, and the rate of complaints increased highest among women of color, the EEOC says.

Lindstrand, however, says she hasn’t seen such a trend in the total number of complaints in Spokane County or statewide.

From fiscal year 2001 through fiscal year 2014, which ended June 30, an average of four complaints of pregnancy or pregnancy-related disability discrimination have been recorded in Spokane County annually by the Washington State Human Rights Commission.

During that period, complaints in Spokane County peaked at seven in 2003, 2004, and 2007. In each of the last three years there have been three or fewer such complaints originating from Spokane County.

King County, which is the most populous county in the state, is the perennial frontrunner in complaints with an average of 13 a year, and a peak of 23 in 2010, the same year in which only one complaint was recorded in Spokane County.

Statewide com-plaints average 50 annually, with a peak of 76 complaints in 2002.

The lowest number of complaints statewide during the 14-year period was last year at 32.

Lindstrand says she fields more complaints from the state’s West Side, because the largest population base is there, but adds that she doesn’t believe the number of complaints for either side of the state is disproportionate to their populations.

Allen, the labor and employment lawyer says he’s wary of such numbers.

He asserts the number of pregnancy and pregnancy-related disability cases is increasing, along with increases in most other categories of disability and leave claims.

He contends most cases aren’t counted in the totals because pregnancy discrimination cases aren’t required to go through the Human Rights Commission to be filed in Washington state courts.

One advantage for a plaintiff to litigate a civil case in state Superior Court is that a verdict can be reached with only 10 of 12 jurors in agreement, Allen says. 

In federal court, verdicts have to be unanimous, meaning one or two dissenting jurors can “run the verdict,” he says

To file an employ-ment discrimin-ation case in federal court, a plaintiff must first obtain a “right to sue” notice through the EEOC, Allen says.

He says most of the companies he represents have practices in place to keep up on antidiscrimination issues.

Some smaller businesses, however, aren’t as attuned to evolving federal and state antidiscrimination rules.

“An employer has to pay a lot of attention to anyone with a protected status before taking an adverse action,” he says.

Mike McLean
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Deputy Editor Mike McLean has worked his entire journalism career in the Inland Northwest. Mike, who also lives to reel in fish and crank up music, has worked for the Journal since 2006.

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