Pregnancy Discrimination in the Workplace: What Are “Light Duty” Rights in 2023?
Some employers offer light duty roles to employees who have been injured, are undergoing treatment for a disease, or suffer from post-traumatic stress or other mental conditions.
Pregnant women may be able to request light duty assignments. The Pregnancy Discrimination Act at the federal level does not necessarily require every job to have a light duty alternative. The Americans with Disabilities Act may do something related to that, about which there will be more citations below. What Title VII of the Civil Rights Act of 1964 does is say that if an employer knowingly disadvantages pregnant women by treating them worse, or has policies that adversely affect pregnant women compared to other similarly situated workers, that is discrimination on the basis of sex.
What Is Pregnancy Discrimination in the Workplace?
A job may require heavy lifting or long periods of standing, but light duty assignments may modify or alter these job requirements. As one court stated, if an employer allows some workers who have medical conditions other than pregnancy less difficult to hazardous work, but does not do the same for pregnant women, this may be illegal. “If an employer transfers an employee to another department or grants him accommodations to make his duties less onerous or dangerous, but that employee retains his full duty status, then the employer’s failure to grant the same accommodation to a similarly limited employee could still conceivably constitute disparate treatment.” Disparate treatment is one form of discrimination under the PDA.
The Pregnancy Discrimination Act also prohibits neutral job requirements that have a disparate impact on women or pregnant women. These are policies or practices that are not meant to discriminate but that do more often have an effect that is negative for women in general, or on pregnant women. An initial case for discrimination may be shown with evidence that an employer uses a policy or habit (a practice) that causes a disparate impact on the basis of sex, including pregnancy, childbirth, or related medical conditions. Medical conditions may be a result of current pregnancy, past pregnancy, or potential pregnancy.
Therefore, one way of showing pregnancy discrimination is that a seemingly neutral employer policy treats pregnancy-related conditions less favorably than other medical conditions, or injuries.
One a plaintiff has shown a disproportionate impact on women, the employer may be allowed to respond that its policy or practice is “job related for the position in question and consistent with business necessity.”
That is not the end of the case, however. The worker may reply with evidence that “the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.”
Who is right on these issues may be an issue for a jury. In federal court, a jury must be unanimous and it must have at least six members. In New York, no less than five-sixths of the jury must render a verdict. In federal court, the judge may ask the jurors to continue deliberating if they cannot agree.
Even if an employee cannot obtain the required number of juror votes, or if the jury votes unanimously for the employer, that is not the end of the story. The employee may attempt to persuade the judge that the jury acted unreasonably and that the only reasonable view of the evidence is that the employer engaged in pregnancy discrimination, given its policies.
Enforcing Light Duty Rights
The U.S. Equal Opportunity Commission helps pregnant women in several ways when it comes to their rights to be free from discrimination. It orders reinstatement of some employees who have been discriminated against. This may happen despite constructive termination, when an employee quits or accepts a severance package after discrimination.
In addition, civil lawsuits are available in federal or state court for pregnancy discrimination, sometimes after receiving a right to sue letter from the EEOC. Courts recognize that an employee may not be able to show exactly what would have happened in terms of eventual promotions, salary levels, and retirement or other benefits if discrimination had not occurred. There is some uncertainty allowed as to both monetary and emotional damages. Emotional distress and medical damages may include the symptoms and cost of treatment and loss of enjoyment of life from anxiety, depression, disease flare-ups, and feelings of isolation and disruption of relationships including by divorce or loss of child custody.
Disability discrimination laws and family and medical leave laws are also relevant to light duty requests and other aspects of pregnancy discrimination. Firing someone who is undergoing a pregnancy-related health complication, or a mental condition such as post-partum depression or depression after miscarriage may be a violation of the Americans with Disabilities Act. The ADA and New York State and/or New York City law require a cooperative process for employers to consider light duty requests. Under New York law, employers with four or more employees (lower than the federal limit) must provide such reasonable accommodations as modified duties, shorter or rescheduled duty times and hours, or new or better equipment or tools such as chairs.
The cooperative process for light duty and other requests is described by the City of New York as follows: “which the [employer] and an individual who may be entitled to an accommodation engage, in good faith, a written or oral dialogue concerning the person’s accommodation needs, potential accommodations, the difficulties that the potential accommodations may pose for the [employer], and alternative accommodations.” The city guidelines state: “examples of reasonable accommodations for pregnancy, childbirth, or related medical conditions include…
- Bathroom breaks.
- Changes to work environment.
- Time off for prenatal appointments.
- Light duty/temporary transfer.
- Extending or advancing leave if employee has no balances.
- Periodic rest for those who stand for long periods of time.
- Assistance with manual labor.”
The Family and Medical Leave Act (FMLA) recognizes leave for up to 12 workweeks to prepare for and give birth, care for a newborn child, or rest, recover from, and/or seek treatment for a serious medical condition. It applies to employers with 50 or more employees. The time off does not have to be paid unless the employee has credits for accrued sick leave or vacation time.
New York law has paid medical and family leave when workers are eligible. This may include the right to paid leave for up to 12 weeks per year to bond with a new child or care for oneself or a spouse or other relative who has a medical condition. The leave pay may not be the same as the average weekly wage; it may be somewhat less. The New York State Disability Benefits Law and New York City Earned Sick Time Act may also be relevant to some employees.
It is important to know your rights when it comes to pregnancy discrimination and improper denials of light duty or leave time to give birth, bond with a child, or deal with medical issues in a family. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.
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