Pregnant Workers Fairness Act
New York State and the Federal Government have offered some protection to Pregnant Employees for quite some time now. However, lawmakers are finally beginning to see that we cannot have true gender equality in the workplace without a more complete suite of protections in place. To that end, the Pregnant Workers Fairness Act went before Congress in October 2012. As we wait to learn the bill’s fate, a discussion of the law’s finer points is a valuable exercise.
Below, we discuss some of the text of the Pregnant Workers Fairness Act from the point of view of a Plaintiff’s side Employment Attorney who hopes to use this law to protect clients victimized by pregnancy discrimination (Attorney Notes Follow in Italics):
Sec. 2. Nondiscrimination With Regard To Reasonable Accommodations Related To Pregnancy.
It shall be an unlawful employment practice for a covered entity to–
(1) not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
(2) deny employment opportunities to a job applicant or employee, if such denial is based on the need of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant;
(3) require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept; or
(4) require an employee to take leave under any leave law or policy of the covered entity if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee.
The reasonable accommodation provisions added here in paragraph (1) could extend protection to new mothers when their Family Medical Leave Act (“FMLA”) runs out. Childcare emergencies, including the loss of a previously hired nanny or the sudden illness of a stay-at-home father, could now be viewed as events that an employer must accommodate in full. Prior to this, we often had to fight with employers, and even file with the Equal Employment Opportunities Commission and the New York State Division of Human Rights, to even obtain a short extension of mere days beyond what a mother is due under the FMLA.
Paragraph (2) does very little to extend protections for pregnant employees in New York State, but it is positive to see the Federal Government catching up with the protections offered here. We can only hope they do so in other areas of discrimination as well.
Paragraph (3) is an interesting provision and we will be watching closely to see how Courts may someday interpret these words.
Paragraph (4) will allow women who wish to remain at their jobs to do so. This is a key protection, as women who have uncomplicated pregnancies will retain the ability to compete and earn in the workplace.
SEC. 3. REMEDIES AND ENFORCEMENT.(a) Employees Covered by Title VII of the Civil Rights Act of 1964-
(1) IN GENERAL- The powers, procedures, and remedies provided in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4 et seq.) to the Commission, the Attorney General, or any person, alleging a violation of title VII of that Act (42 U.S.C. 2000e et seq.) shall be the powers, procedures, and remedies this title provides to the Commission, the Attorney General, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 5(2)(A), except as provided in paragraphs (2) and (3).
(2) COSTS AND FEES- The powers, remedies, and procedures provided in subsections (b) and (c) of section 722 of the Revised Statutes of the United States (42 U.S.C. 1988), shall be the powers, remedies, and procedures this title provides to the Commission, the Attorney General, or any person, alleging such a practice.
(3) DAMAGES- The powers, remedies, and procedures provided in section 1977A of the Revised Statutes of the United States (42 U.S.C. 1981a), including the limitations contained in subsection (b)(3) of such section 1977A, shall be the powers, remedies, and procedures this title provides to the Commission, the Attorney General, or any person, alleging such a practice (not an employment practice specifically excluded from coverage under section 1977A(a)(1) of the Revised Statutes of the United States).
The remedies presented here are no great change from those previously available to New York City residents. Such provisions under the New York State Human Rights law are not as strong and so I am happy to see the extension of Federal attorneys’ fees rights to New York State Plaintiffs who are not covered by the New York City Human Rights Law.