Retail Employers Need To Know Pregnancy Accommodations

Retail employers struggle to avoid pregnancy discrimination and accommodation claims because the law on this issue appears to be ever-changing. Indeed, just recently the U.S. Supreme Court agreed to hear Young v. United Parcel Service Inc. to determine whether the federal Pregnancy Discrimination Act requires an employer providing accommodations to nonpregnant employees must provide those accommodations to pregnant employees with similar restrictions. Plus, the U.S. Equal Employment Opportunity Commission recently published guidance addressing the treatment of pregnancy under Title VII. Most significantly, the guidance adopted a novel position that under the language of the federal pregnancy law, all pregnant workers are, as a practical matter, entitled to a “reasonable accommodation” as understood by the Americans with Disabilities Act. This position has never been adopted by any circuit court. It is clear that these unsettled issues surrounding pregnancy discrimination and accommodation claims continue to pose challenges for employers.

In retail workplaces, pregnancy accommodation issues are not at all surprising and arise just as, if not more, frequently as with other types of employers. After all, we know that over half of the U.S. workforce is female, more than 65 percent of women work while pregnant and over 70 percent of U.S. mothers with children under 18 work outside the home. Also, women account for 49 percent of retail employees.

Today, more women are working during and after pregnancy and seem to be working heavily in retail. As the employment landscape continues to change to fit our new societal values, retail employers must understand the legal developments affecting employees’ rights in this area.

Legal Landscape

In 1978, Congress enacted the PDA, which amended Title VII of the Civil Rights Act and made clear that discrimination on the basis of pregnancy or related medical conditions is a form of unlawful sex discrimination. The PDA prohibits discrimination on the basis of pregnancy by requiring that employers treat women affected by pregnancy or other related medical conditions the same and provide them with the same benefits. This means that employers cannot discriminate against pregnant women in terms of discipline, employment opportunities, termination or terms and conditions of employment.

Since the PDA’s enactment, many states, local civil rights laws and ordinances also require employers to provide reasonable accommodations to employees. These requirements range from accommodations based on pregnancy needs and childbirth to other related medical conditions. Further, many of these state laws provide even broader rights and protections than the PDA and require accommodation regardless of whether the pregnancy constitutes a disability as defined under the ADA.

Additionally, pregnant employees may also have rights under the Family and Medical Leave Act and similar state and local laws. The FMLA provides 12 weeks of unpaid leave for eligible employees in connection with the birth of a child, for prenatal care and incapacity related to pregnancy, and for the pregnant employee’s own serious health condition following the birth of a child. Many states have similar pregnancy leave laws that are broader in their protections and coverage. Therefore, it is imperative that retail employers keep abreast of all laws in their jurisdiction that may impact pregnant employees.

Accommodation Obligations Related to Pregnancy

While normal pregnancies are not a disability that employers must reasonably accommodate under the ADA, some pregnant employees may have complications that require accommodations, and they may ultimately qualify for ADA protection.

The issue courts and employers struggle with is that pregnant employees, though not necessarily disabled under the ADA in all cases, may still request an accommodation as a result of their pregnancy. Recent EEOC guidance has clarified that if an employee is unable to perform the essential functions of her job for reasons relating to a pregnancy, her employer should treat the pregnant employee like it would treat any other temporarily disabled employee and engage in the interactive process.

Some states have addressed the issue by requiring accommodations for pregnant employees, regardless of whether the pregnancy rises to the level of a disability. For example, under the Minnesota Women’s Economic Security Act, a pregnant employee is automatically entitled to the following “minor” accommodations — without having to provide medical support — and without the employer being able to assert undue hardship:

  • more frequent restroom, food and water breaks;
  • seating; and
  • limits on lifting over 20 pounds.

Minnesota is just one example of a state recognizing pregnancy accommodation. Other states such as Alaska, California, Connecticut, Hawaii, Illinois, New Jersey and Texas provide similar protections.

Considerations for Retail Employers

With additional requirements to accommodate pregnant employees, retailers must remain vigilant in evaluating the types of accommodations that might be appropriate, or even possible. The size and layout of the store, in addition to the number of sales associates on duty and the makeup of various positions will ultimately have an effect on a retail employer’s ability to modify work requirements by allowing for things like breaks, increased water consumption and sitting while working. While a water intake increase request could easily be accommodated by permitting associates to carry water bottles, or take additional water breaks, a more difficult (yet common) accommodation, however, is the request for rest breaks and to sit down during the workday. Here, creative store layouts and potential employee shuffling will best accomplish this kind of task.

Types of Accommodations

The needs for pregnant employees vary before, during and after pregnancy. You should make individualized assessments in each case. Moreover, employers’ obligations to accommodate do not necessarily terminate with the end of a pregnancy or leave. This is a critical area of consideration for the retail employer. For example, some accommodations pregnant employees, or returning mothers may require include:

  • frequent breaks;
  • travel restrictions;
  • lifting and standing restrictions;
  • extended leaves of absence;
  • light-duty work; and
  • expression of breast milk at work.

Again, retail employers need to be creative in identifying an area that could provide employees returning from maternity leave with an appropriate place — and reasonable time — to express breast milk. For example, for a small store without adequate room or privacy for such activities, this requirement can be especially difficult. If a retailer is located in a larger complex such as a shopping mall, a retailer may need to work with the shopping mall itself to find an office or private area nearby that can be utilized for breast milk expression.

In light of the myriad of laws in play, regardless of whether pregnant employees are disabled, retailers will need to consider what types of accommodations they might need. Failure to do so may leave the employer vulnerable to a pregnancy discrimination claim/failure-to-accommodate claim.

Other Recommendations for Retail Employers

Above all, it is important that retailers stay abreast of federal, state and local laws concerning pregnancy discrimination and accommodations. It is also crucial that employers review key policies to ensure that they are current, including equal employment opportunity, nondiscrimination, reasonable accommodation, FMLA and similar leave policies. These policies should clearly inform employees that they have a right to raise accommodation requests, to whom such requests should be made and that the employer will engage in the interactive process. It is also important that managers be trained to recognize when requests are being made, triggering the interactive process.

~Author: Tracy M. Billows and Kevin A. Fritz, Seyfarth Shaw LLP