When a worker announces she’s expecting a baby, there are definitely some things her employer should do—and should not do—or else face Equal Employment Opportunity Commission charges, lawsuits and bad publicity, according to XpertHR’s whitepaper, “Bumpy Road Ahead: Managing Pregnancy and Related Issues in the Workplace.”
“Making negative comments, involuntarily reassigning an employee based on health and safety concerns, refusing to hire a pregnant employee and failing to provide a reasonable pregnancy or lactation accommodation all may constitute unlawful conduct for which an employer may be held liable, the authors write. “Some employers are learning this the hard way.”
Related: Wall Street dads find parental leave easier to get than to take
Employers like Amazon, Cato Corp., Family HealthCare Network, Estee Lauder, JPMorgan Chase and Auto Zone collectively have paid tens of millions to settle lawsuits alleging discrimination or failure to provide reasonable accommodations. From 2010 to 2018, the EEOC received on average 3,000 to 4,000 complaints of pregnancy discrimination per year, and on the state level, nearly 31,000 charges of pregnancy discrimination were filed with those agencies from 2011 to 2015.
Part of a manager’s duty to comply with regulations is letting a pregnant women decide whether or not she can continue to perform all of her duties, even if it’s lifting heavy objects, according to the report.
“Avoid imposing paternalistic notions with respect to pregnant women and what they are capable of in the workplace and with respect to their jobs,” the authors write. “Each employee has the right to make her own decisions regarding what is best for her and her pregnancy.”
Employers are also required to treat fathers fairly and equally.
“Ensure that policies and practices do not reinforce traditional gender roles and stereotypes and send a message to new mothers that they should stay home as caregivers, while new fathers should return to work as breadwinners,” the authors write. “Further, consider all types of families, including those with same-sex parents or grandparents as caregivers, when administering such policies.”
There may be a new federal law coming down the pike: the Pregnant Workers Fairness Act (H.R. 2694), a bipartisan bill introduced in May. Under the proposed law, employers would be required to provide reasonable accommodations for an employee’s or applicant’s known limitations related to pregnancy, childbirth or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on business operations.
Employers also may not require applicants or employees to accept accommodations an individual chooses not to accept or to take paid or unpaid leave if another reasonable accommodation can be provided. The proposed law also contains retaliation provisions.
“Under current law, women are not guaranteed reasonable accommodations to remain healthy and in the workforce during pregnancy,” say proponents of the bill, according to XpertHR’s report. “This bipartisan effort puts in place a uniform, fair and familiar framework for employers and will enable women to keep working safely and provide for their families throughout pregnancy.”
As it stands now, employers should EEOC’s 2015 updated guidance on pregnancy discrimination and related issues, detailing the following:
- Unlawful discrimination against pregnant women
- The obligation to provide pregnant workers with equal access to employment benefits such as leave, light duty, health benefits and accrual of retirement benefits and seniority
- Pregnancy-related impairments under the ADA and its amendments and the right to reasonable accommodations
- Protections for caregivers
- Prohibitions on an employer taking adverse action against a pregnant worker based on health and safety concerns or prejudices of co-workers, clients or customers
- The application of the PDA to lactation and breastfeeding
- Unlawful harassment against pregnant women
- Light duty work
- The prohibition on requiring a pregnant employee to take leave from her job at any point in her pregnancy or after childbirth
- Parental leave for new mothers as well as new fathers
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