Pregnancy Discrimination

Remember: Pregnant Employees Are Entitled to Reasonable Accommodations Too!It should come as no surprise that employers must treat pregnant employees just like everyone else when it comes to reasonable accommodations. We’ve blogged on this topic several times before, but a recent lawsuit by the EEOC in North Carolina merits a renewed focus on the issue.

The EEOC has sued Century Care of Laurinburg, Inc. d/b/a Scottish Pines Rehabilitation & Nursing Center over its treatment of two pregnant certified nursing assistants (CNA). According to the complaint, both CNAs requested accommodations to not lift more than a certain weight—an accommodation allegedly given to other employees who had been injured on the job. The EEOC says that the employer said such light duty was only available to employees with on-the-job injuries and denied the accommodations. When the CNAs’ doctors would not revoke the lifting restrictions and they had no more leave available, they were terminated. The complaint is seeking injunctive relief (including company policy changes), back pay, compensatory damages, and punitive damages on behalf of the terminated nurses.

Although the end result is yet to be seen, this case serves as a good reminder to employers to be careful when considering accommodations, especially when dealing with pregnancy-related accommodations. The Pregnancy Discrimination Act (PDA) prohibits discrimination on the basis of pregnancy, childbirth, and related medical conditions and provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” This means that employers must treat pregnant employees the same as other employees. If a pregnant employee requests accommodation, the employer must consider a reasonable accommodation just like it would for a non-pregnant employee with a medical condition. That doesn’t mean that a pregnant employee must receive the requested accommodation. But the Scottish Pines lawsuit reminds employers to consider a pregnant employee’s request for reasonable accommodation just like any other request and that treating on-the-job injuries differently can land you in court.

The Poster Post – DOL Updates to Your Employees’ Favorite Area of the Break RoomThe United States Department of Labor (DOL) has revised mandatory federal posters on the Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA). By law, employers must display official DOL posters where employees and job applicants can readily see them. Here’s a general overview of the applicable statutes and the specific updates:

FLSA Poster Updates

As we all know, the FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards for employees in the private sector and in federal, state, and local government. Covered non-exempt workers are entitled to a minimum wage (currently not less than $7.25 per hour). Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.

The updated FLSA poster has the following changes:

  • The posting requirement is now at the top of the poster, as opposed to within the “Additional Information” section.
  • The “Child Labor” section removed the specific hours and days in which 14- and 15-year- olds may work, as well as the hours when work must begin and end.
  • The “Tip Credit” section now reads: “Employers of ‘tipped employees’ who meet certain conditions may claim a partial wage credit based on tips received by their employees,” instead of “Certain other conditions must also be met.”
  • A “Nursing Mothers” section has been added: “The FLSA requires employers to provide reasonable break time for a nursing mother employee who is subject to the FLSA’s overtime requirements in order for the employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has a need to express breast milk. Employers are also required to provide 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 the employee to express breast milk.”
  • The poster removes the maximum amount of civil penalties from the “Enforcement” section. This is a result of the fact that agencies across the federal government must adjust their penalties for inflation each year. Currently, the maximum civil monetary penalties for violations are:
    • Violation of recordkeeping, monetary, certificate or other statutes, regulations or employer assurances: $1,005
    • Violation of child labor standards: $12,278
    • Violation of child labor standards that causes the serious injury or death of a minor: $55,808
    • Willful or repeated violation of child labor standards that causes the serious injury or death of a minor: $111,616
    • Repeated or willful violation of minimum wage and/or overtime laws: $1,925
  • In the “Additional Information” section, the following changes have been made:
    • The Commonwealth of Puerto Rico has been added to the locations in which special provisions apply to workers.
    • The law regarding employees under 20 years of age being paid $4.25 per hour during their first 90 consecutive calendar days of employment has been removed.
    • Statements regarding independent contractors have also been added. They state:
      • Some employers incorrectly classify workers as “independent contractors” when they are actually employees under the FLSA. It is important to know the difference between the two because employees (unless exempt) are entitled to the FLSA’s minimum wage and overtime pay protections and correctly classified independent contractors are not.

EPPA Poster Updates

The EPPA generally prevents private sector employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain limited exceptions.  Employers generally may not require or request any employee or job applicant to take a lie detector test, or take any action because an individual refuses to take a test or exercises other rights under the EPPA. The EPPA does not apply to federal, state, and local government agencies.

On the updated EPPA poster, the “Enforcement” section no longer includes the maximum amount of civil penalties (up to $10,000) because, as noted above, the penalties must be adjusted for inflation each year. Currently, the maximum civil monetary penalty is $20,111.

Where to Find Updated Posters

Don’t have your updated posters yet? Don’t worry. DOL provides the posters at no cost. All DOL posters can be viewed, downloaded, and ordered here. The EPPA poster can also be accessed here, and the FLSA poster can be accessed here.

The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActDoes an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant?  The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to breastfeeding. The police department said the requested accommodation was not required and she ultimately left her job, alleging she had been constructively discharged. The 11th Circuit stated that a “plain reading” of the PDA showed that breastfeeding is covered and affirmed the jury verdict in Hicks’ favor.

Factual Background

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. After she became pregnant, her supervisor allowed her to work on pharmaceutical fraud cases so she could be off on nights and weekends. Before she left for her FMLA pregnancy leave, Hicks received exceptional performance reviews. However, on her first day back at work after her leave, she was written up. She submitted that some of her superior officers negatively commented on the length of her FMLA leave. The City claimed that Hicks was not willing to meet the demands of a narcotics officer and subsequently transferred her out of that unit and into a patrol unit. The City wrote a letter stating the reasons for her demotion and included an incident where officers came to Hicks’s home to get her police car and she did not come out because she was breastfeeding.

One of the big differences between a narcotics officer and a patrol officer is that a patrol officer must wear a ballistic protective vest all day. Hicks’s doctor wrote a letter to the police chief asking that she be considered for alternative duties because the restrictive ballistic vest could cause breast infections that could lead to problems with breastfeeding. Hicks asked for a desk job so that she would not be required to wear a vest. The Police Department instead only offered her two options:  1) don’t wear a vest; or 2) wear a “specially fitted” vest that left gaping holes. For safety reasons, Hicks did not choose either option and resigned. She sued the City and a jury found in her favor on constructive discharge, pregnancy discrimination, and FMLA interference, awarding her $374,000. The City appealed, arguing that it reassigned Hicks because of her poor performance rather than discrimination.

The Eleventh Circuit’s Take

The 11th Circuit found that Hicks was both discriminated against on the basis of her pregnancy and retaliated against for taking FMLA leave.  Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth or “related medical conditions.” The 11th Circuit held that lactation is a related medical condition to pregnancy and therefore, a termination based on a woman’s need to breastfeed violates the PDA. The court went on to make the somewhat obvious statement: “Breastfeeding is a gender-specific condition because it clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”

However, the court noted, there is an abundance of case law stating that Title VII and the PDA do not mandate that employers  have to provide “special” accommodations to breastfeeding workers. The opinion recognizes that Hicks had a unique case. While the City may not have been required to provide Hicks with special accommodation for breastfeeding, the City’s action in refusing an accommodation offered to other employees compelled her to resign and supported the jury’s verdict. The court went on to cite Young v. United Parcel Service a case that recognized a Title VII claim for a pregnant woman where her employer failed to accommodate her in a lifting restriction, but accommodated other similar non-pregnant employees on worker’s comp. Given these facts, the court upheld the jury verdict.

What Did We Learn?

This decision clearly shows that a breastfeeding employee is still protected under the PDA and employers should take note. While it is not an absolute protection from any supported non-discriminatory adverse employment action, employers should be careful about loose comments about the employee and certainly should engage in an interactive process if approached about a reasonable accommodation. While the 11th Circuit made some blanket statements that breastfeeding employees don’t have to be treated as special, they surely were not ignoring an employer’s obligation under the FLSA that mandates employers to provide reasonable break time for employees to express breast milk for a nursing child for up to one year after the child’s birth. The employer must also provide the lactating employee a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.