By Dana Wilkie 3/23/2015
With pregnancy discrimination claims growing at a faster rate than any other protected category, it’s critical that employers know what comments and behavior to avoid when dealing with workers who are expecting, attorney Courtney Barksdale Perez said March 23 at the Society for Human Resource Management’s 2015 Employment Law & Legislative Conference in Washington, D.C.
Barksdale Perez, a senior associate at Dallas, Texas-based Carter Scholer Arnett Hamada & Mockler PLLC, said managers should wait for workers to mention their pregnancies, instead of asking the employee first.
“You don’t approach them as a manager and say, ‘So, I noticed you’re pregnant—were you planning on coming back?’ ” advised Barksdale Perez, who spoke at a concurrent session on the conference’s opening day. “Let the employee approach you. That’s your opportunity to say ‘Congratulations! Are you familiar with our pregnancy policy?’ ”
Barksdale Perez explored the best ways to avoid liability for sex, pregnancy and caregiver discrimination under Title VII of the Civil Rights Act of 1964, the Patient Protection and Affordable Care Act, the Family and Medical Leave Act, the Pregnancy Discrimination Act (PDA), and the Americans with Disabilities Act (ADA).
Barksdale Perez, who said she is pregnant with her third child, noted that pregnancy discrimination claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) grew by 35 percent from 1997 to 2007.
“No other area in the EEOC has grown in the last decade as fast as pregnancy discrimination,” she said.
One of the reasons for that may be that an increasing number of women are choosing to stay on the job while pregnant, and to return to work after delivering their babies, Barksdale Perez observed.
Citing U.S. Bureau of Labor Statistics data, she said that in 1960, the labor participation rate for mothers who were the sole or primary providers for their children was 11 percent; in 2011, it was 40 percent.
“The presence of [pregnant or parenting] women in the workplace has increased and will continue to increase,” she said. “Employers are having to adapt.”
Barksdale Perez discussed key pregnancy discrimination cases, including Young v. United Parcel Service, which is pending before the U.S. Supreme Court.
Peggy Young, a UPS driver who sometimes had to lift packages weighing up to 70 pounds, became pregnant and gave her supervisor a note from her midwife recommending that she not lift more than 20 pounds during her pregnancy. Young wanted to work at her regular job or be assigned to a light-duty position, but her request was denied. She sued UPS, alleging the company violated the PDA by failing to give her the same accommodations afforded nonpregnant workers whose physical disabilities presented them with comparable constraints. An appeals court affirmed a lower court’s decision to grant summary judgment to UPS, upholding the determination not to accommodate Young’s lifting restriction. The appeals court called the company’s accommodations policy for other workers “pregnancy-blind.”
“It’s one of those cases that may expand the definition of the PDA,” Barksdale Perez said.
Her advice for employers to help reduce the risk of liability includes avoiding assumptions and stereotypes that could translate into actionable behavior. For instance, she said, catch yourself if you tend to think that pregnant workers are less reliable than others, or less focused on career and promotions. Never ask about a pregnancy during a job interview, nor about an applicant’s plans for starting a family in the future.
Also risky, she said, is making comments to a pregnant worker, no matter how well-intentioned, such as “When are you due?” or “How long are you going to take off?”
“You may just think you’re being nice,” she said. “But those are the kinds of comments that will come back later down the road and hurt you.”
Dana Wilkie is an online editor/manager for SHRM.