First off, I want to wish all of my Jewish brethren a happy new year, and a nice period of reflection leading up to Yom Kippur. A bit different this year with massive synagogue gatherings not being in the cards. Some of us just reflected while others may have gone online and participated with their synagogue that way. Regardless of the means used, I hope your reflection went well.
I have quite a few cases that I could blog on in my pipeline, but today I opted to blog on HR 2694, the Pregnant Workers Fairness Act168119119119186117 that passed with large bipartisan majorities in the House on September 17. A few of my colleagues who blog on labor and employment law have already mentioned it, such as Eric Meyer and Jon Hyman. It wouldn’t surprise me if Robin Shea and many others weigh in as well. I thought I would break it down. So, here goes.
As we know from this blog entry, it makes sense as a preventive law matter to analyze accommodations for women who are pregnant in the same way that you would go about doing it for the ADA. However, that is just a matter of preventive law. This particular bill would mandate that whenever dealing with accommodation for women who are pregnant, you want to have your ADA hat on. The blog entry is divided into categories, all of which except the thoughts/takeaways section focuses on the Act itself. You are definitely going to want to read the whole thing as focusing on just parts of the Act doesn’t make any sense. Also, readers consistently tell me that my thoughts/takeaways section is very valuable. So, that means you need to read the whole thing. It isn’t very long anyway.
Unlawful Employment Practices Include
- Not making reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee unless the covered entity can show an undue hardship on the operation of the business;
- Requiring a qualified employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than any reasonable accommodation arrived at through the interactive process;
- Denying employment opportunities to a qualified employee if the denial was based upon the need of the covered entity to make reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Requiring a qualified employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee;
- Taking adverse action and terms, condition, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.
- Remedies are tied into title VII of the Civil Rights Act of 1964.
- Attorney fees and expert witness fees are recoverable.
- Prohibits retaliation.
- Prohibits coercion, intimidation, threats, or interference.
- Good faith is a defense to damages.
- There is a forcible waiver of sovereign immunity.
Applicability to Federal Government
- Applies to Congress.
- Applies to employees of the federal government.
- Covered entity under this Act is defined in the same way as §701(n) of the Civil Rights Act of 1964, 42 U.S.C. 2000e(n).169120120120187118
- “Known limitation,” means a physical and mental condition related to, or affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer whether or not such condition meets the definition of a disability under the ADA.
- “Qualified employee,” means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. However, a person is still qualified if all of the following are true: 1) any inability to perform the essential function is for a temporary period; 2) the essential function could be performed in the near future; and 3) the inability to perform the essential function can be reasonably accommodated.
- “Reasonable accommodation,” and “undue hardship,” mean the same thing as found in 42 U.S.C. §12111170121121121188119, title I of the ADA.
- When I talked to my colleague Robin Shea, a partner with Constangy et. al., about this, she thought the bill was a good idea because while doing all this is great preventive law. Young v. United Parcel Service171122122122189120 can get fuzzy at times, as discussed later. I agree with her. After Young v. United Parcel Service, this bill is exactly what best practices for any employer would be and it would be codified.
- Covered entity tracks the Civil Rights Act and NOT what is a place of public accommodation under 42 U.S.C. §12181172123123123190121(7).
- Must have 15 or more employees, which is the same number as four title I of the ADA.
- Requires an interactive process and that process if done right is a defense to damages, which matches up with the remedies provisions associated with the ADA at 42 U.S.C. §1981a(a)(3).173124124124191122 Remember to get it right, as we discussed here174125125125192123. The interactive process must be in search of a reasonable accommodation that would provide the employee with an equally effective opportunity that does not cause an undue hardship, which also matches up with title I of the ADA.
- Since women are in an intermediate scrutiny class, the forcible waiver of sovereign immunity will probably fly because it likely would be found to be proportional to the harm being redressed.
- Undue hardship as phrased in the Act clearly includes both logistical and financial undue hardship, which also matches up with how title I of the ADA has been interpreted over the years.
- The EEOC is responsible for implementing the statute and has two years to draft regulations. My guess is that the regulations would closely track the title I ADA regulations.
- Out of necessity, qualified under the Pregnant Workers Fairness Act is not the same as qualified under title I of the ADA, though it is close.
- Is this legislation needed? After all, didn’t the Supreme Court in Young say that if an employer is accommodating persons with disabilities, they also have to accommodate pregnant workers? While it is true that the Supreme Court did hold that much, the paradigm for making it work is quite vague. I confirmed this by rereading the opinion. Young tells us the following: 1) McDonnell Douglas burden shifting gets used in pregnancy nondiscrimination matters; 2) a prima facie case means showing: the plaintiff belonged to the protected class; that she sought an accommodation; and that the employer did not accommodate her while accommodating other similar in their ability or inability to work; 3) a plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. So, it is clear from rereading the opinion that pregnant workers must be reasonably accommodated if you are ready accommodating persons without disabilities. However, the opinion doesn’t say much about how that process is supposed to work. For example, no mention of an interactive process. Also, no mention of how far you have to go with respect to accommodating a pregnant worker in need of accommodations. Lawyers familiar with the ADA quickly realized that it made a great deal of sense to just take the ADA process and layer it onto accommodating pregnant workers. However, that is just lawyers being creative. Not all lawyers are that familiar with the ADA. This legislation makes it statutory that preventive law currently being used by farsighted lawyers also familiar with the ADA should be codified. So, I come down on the side that Young simply isn’t clear enough as to what needs to be done when accommodating pregnant workers, and so, in my view, this legislation is necessary.
- It’s going to be interesting to see whether this gets a Senate vote. It passed the House by overwhelming majorities. I am a political junkie, I wrote a seminar paper in college on voting behavior and follow the field religiously, and I have been reading quite a bit about how the Republicans are in trouble with educated women in the suburbs. Passing this legislation, which is something that farsighted employers should be doing anyway and which the Chamber of Commerce is backing, would seem to be an easy way for Republicans to say that they have done something for a group that is treating them with a great deal of skepticism at the moment. Then again, there is only so much bandwidth and there is a vacancy on the Supreme Court that has very much moved to the forefront. So, anybody’s guess at two whether the Senate considers it. Also, anybody’s guess as to whether the Senate amend the house bill in some way and it has to go to a conference committee.
- The overlap between FMLA and the ADA often raises the question whether you can force an employee to take FMLA leave rather than accommodate them per the ADA. The Pregnant Workers Fairness Act makes clear that you cannot do that with respect to a pregnant person working for an entity covered by the Act. Best practices is such that you shouldn’t do that for the ADA either, though there isn’t a specific prohibition that would prevent an employer from doing that. That said, very bad idea for the employer to insist on leave and then end the interactive process.
- The use of the term “based on,” means that causation is but for as detailed in Bostock, discussed here175126126126193124.