AAC F A M I L Y & F R I E N D S
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requiring bed rest; and the after-effects of a delivery. Lactation is also a pregnancy-related medical condition. An em-
ployee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to ad- dress other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapac- itating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs. In addition to being protected under the PDA, female hourly
employees who are breastfeeding have rights under other laws, in- cluding a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employ- ers to provide reasonable break time and a private place for breast- feeding employees to express milk.
WORKERS WITH CAREGIVING RESPONSIBILITIES
6. Does the law provide protections for caregivers? Discrimination based on an employee’s caregiving responsibili- ties may violate Title VII if it is based on sex. For instance, an employer would violate Title VII by denying job opportunities to women, but not to men, with young children, or by reassigning a woman who has recently returned from maternity leave to less desirable work based on the assumption that, as a new mother, she will be less commit- ted to her job. Although leave related to pregnan- cy, childbirth or related medical conditions can be limited to women af- fected by those conditions, if an employer provides parental leave, it must be provided to similarly situ- ated men and women on the same terms. In addi- tion, employers covered by the Family and Medical Leave Act (FMLA) must provide eligible employees with up to 12 weeks of job-protected leave to care for and bond with a newborn baby or a recently adopted child. Dis- crimination based on an employee’s caregiving responsibilities may violate the ADA if it is based on the employee’s relationship with an individual with a disability.
promotion, that are based on an employer’s as- sumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work or commitment to their jobs, are unlawful.
“A
sufficiently hostile to constitute unlawful harassment depends on factors such as the frequency of the conduct or its severity. Employ- er liability can result from the conduct of supervisors, coworkers or non-employees such as customers or business partners over whom the employer has some control.
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CONCERNS ABOUT SAFETY AND ABILITY TO PERFORM THE JOB
7. Will an employer violate the PDA if it takes an adverse action against a pregnant worker based on concerns about her health and safety? Yes. Although an employer may, of course, require that a preg- nant worker be able to perform the duties of her job, adverse em- ployment actions, including those related to hiring, assignments or promotion, that are based on an employer’s assumptions or stereo- types about pregnant workers’ attendance, schedules, physical abil- ity to work or commitment to their jobs, are unlawful. Even when an employer believes it is acting in an employee’s best interest, ad-
COUNTY LINES, WINTER 2015 EQUAL ACCESS TO BENEFITS
An employer is required under the PDA to treat an employee temporarily unable to perform the functions of her job because of her pregnancy or a related medical condition in the same man- ner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assign- ments or fringe benefits such as disability leave.
LIGHT DUTY
10. If a pregnant employee needs light duty (temporary work See “DISCRIMINATION” on Page 14 >>>
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verse actions based on assumptions or stereotypes are prohibited. For instance, it is unlawful for an employer to involuntarily reas- sign a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy. An employer may only reassign a pregnant worker based on con- cerns about her health or the health of her fetus if it can establish that non-pregnancy or non-fertility is a BFOQ as described in Question 2, above. In very few, if any, situations will an employer be able to establish this defense.
8. May an employer take an adverse action against a preg- nant worker because of the views or opinions of co-workers or customers? No. Just as an employer cannot refuse to hire or retain a pregnant woman because of its own prejudices against pregnant women, it cannot take an adverse action against a pregnant worker because of the prejudices of co-workers, clients or customers. For instance, an employer may not place a pregnant worker who can perform her job on leave based on her co-workers’ belief that she will place additional burdens on them and interfere with their productivity.
HARRASSMENT
dverse employment actions, including those related to hiring, assignments or
employees from harassment based on pregnancy, child- birth, or related medical con- ditions? Yes. Unwelcome and of-
9. Does the PDA protect
fensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance that is motivated by pregnancy, childbirth or re- lated medical conditions may constitute unlawful harass- ment. Whether the conduct is
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