Archive | EEOC

Employers are required to treat women affected by pregnancy, child birth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. Employers with 15 or more employees are subject to the requirements of the Pregnancy Discrimination Act (“PDA”) which covers all aspects of employment including hiring, firing, promotions and benefits. Pregnant workers are protected from discrimination regardless of whether the pregnancy is current, past or potential. Under the PDA, an employer cannot take an adverse employment action against a woman if pregnancy, childbirth or a related medical condition is a motivating factor. This holds true even if the employer believes it is acting in the employee’s or the baby’s best interest.  The same also holds true for both past and potential pregnancies.

The EEOC has also cautioned that an employer violates Title VII by treating a female employee with young children less favorably than a male employee with young children based on the belief that the mother should focus on children rather than a career. In addition, the EEOC also cautions that an employer violates the ADA where it takes an adverse action against a mother of a newborn with a disability due to concerns that the mother will need to take significant time off work due to the child’s medical condition and/or due to a concern that a child’s medical condition would impose high health care costs.

The EEOC has also offered guidance that an employer has to provide light duty alternative assignments, disability leave, and unpaid leave to pregnant workers if it does so for other employees who are similar in their ability or inability to work. However, if the light duty policy restricts the number of light duty positions or the duration of such assignments, the employer may apply those restrictions to pregnant workers as long as those restrictions are applied to other non-pregnant workers.

As it pertains to leave, an employer must allow a woman with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others in a similar situation who are not pregnant. An employer may not single out a pregnant employee for medical clearance procedures that are not required of other employees and may not remove a pregnant employee from her job because of pregnancy as long as she is able to perform her job. In addition, an employer must allow pregnant employees to return to work following recovery from a pregnancy related condition to the same extent as it would with other employees.

Pregnancy in of itself is not a disability; however, pregnant employees may experience impairments related to their pregnancies that qualify as a disability under the ADA.  Such conditions could include pregnancy related carpal tunnel, gestational diabetes and preeclampsia. To the extent a pregnant employee is suffering from a related condition which qualifies as a disability, the employer must provide that employee with a reasonable accommodation. Such accommodations could include, but are not limited to, temporary reassignment, leave, modified work schedules and/or policies (i.e. more frequent breaks, being allowed to keep a drink at a work station). The EEOC also notes that a reasonable accommodation could be to allow a pregnant worker who has been placed on bed rest to telework when feasible. Under the PDA, lactation is a medical condition related to pregnancy and therefore, an employer may not discriminate against an employee based on a breast feeding schedule.

We also remind employers that the birth and care of a newborn qualifies for FMLA leave and protection when the employee is FMLA-eligible.

The EEOC recently filed suit on behalf of three (3) former employees against a New York company claiming that the employees were forced to participate in religious activities at work and were fired if they refused. It is alleged that the company required the employees to pray, thank God for their jobs, and tell their managers and colleagues “I love you”. The company followed a belief system called “Onionhead” which was a doctrine created by a family member of the company’s owner. In addition, there were group prayers, candle burning, and discussion of spiritual texts in the workplace. Employees were also told to wear Onionhead buttons. It is alleged that none of these practices were work-related. It is further alleged that one employee told management that she was Catholic and did not want to participate in the Onionhead practices. That employee’s office was then relocated and a large statue of Buddha was placed in her former office. After she protested, she was then fired. The EEOC has filed suit on behalf of these employees seeking back pay with interest and unspecified damages. In addition, the EEOC is also seeking an injunction against the company relative to their religious requirements. Through this suit, the EEOC is contending that employers are not permitted to dictate the religious aspects of their employees’ lives and that work pressure to conform to the employer’s spiritual or religious practices violates federal employment law.

Without question, this case poses rather extreme facts but nonetheless it is a reminder to employers that they should not require or pressure their employees to conform to a particular religion or to require religious activity in the workplace, especially in the absence of a bona fide work related reason.

It has become apparent that pregnancy discrimination is of particular interest to the EEOC in that the EEOC has been pursuing an increased number of these cases. Recently, the EEOC filed suit against an employer which refused to permit a pregnant employee to return to work after needing a few days off work for premature labor due to a concern for the safety of the baby. The EEOC also pursued another case where a pregnant employee was fired due to concerns that the job duties would potentially harm the baby.  Both of these cases were recently settled by the employers for slightly less than $30,000.00 each.  These cases confirm, however, that adverse employment actions against pregnant employees based on a concern for the health and/or safety of the unborn child are not permissible and can be liability producing.

This also holds true in a prospective employment situation.  In another case, an employer refused to hire a qualified applicant after learning that the applicant was pregnant. The perspective employer had interviewed the applicant multiple times, gave her positive feedback and extended a job offer through the staffing company. Once the prospective employer learned of the applicant’s pregnancy, the prospective employer refused to hire the applicant and later hired a non-pregnant applicant instead. The EEOC filed suit against this employer as well. This case was recently settled for $90,000.00.

Accordingly, we remind employers that discrimination on the basis of pregnancy is not permissible even if it arises out of a concern for the safety and health of the unborn baby.

The short answer to this question is yes. In fact, the EEOC announced in late October, 2013 that an employer is paying $30,000.00 to settle such a sexual harassment suit. In that suit, a female receptionist was allegedly sexually harassed by a male client at her place of employment.

That employee then allegedly complained to her supervisor about the sexual harassment, but no action was taken by the employer to stop the alleged harassment. The EEOC filed suit against the employer on behalf of the employee.

The lesson to be taken from this is a reminder that an employer can be liable for sexual harassment committed by a non-employee such as a client or a vendor if the employer knew about the conduct and failed to take appropriate corrective action.