New Guidance on Pregnancy Discrimination and Bias

Amid controversy, and with a pending United States Supreme Court decision lurking in the background - the Equal Employment Opportunity Commission (EEOC) issued updated guidance on discrimination, harassment and bias under the Pregnancy Discrimination Act.

A fact sheet created by the EEOC for small businesses addressing the new guidancecan be accessed here. 

Under the PDA, employers are required to treat women affected by pregnancy, childbirth and related medical conditions in the same manner as other employees (or applicants for employment) with respect to leave time, attendance issues and other work-related restrictions. Employers cannot discriminate against employees because of their pregnancy, pregnancy related medical conditions, childbirth or past pregnancy, or because of an employer's intention, desire or potential to become pregnant. Such prohibition also includes discrimination on the basis of lactation or breastfeeding. The PDA also prohibits harassment because of pregnancy or pregnancy-related conditions.

The new guidance issued by the EEOC clarifies that employers must provide the same benefits of employment to women affected by pregnancy as they do to other employees who are restricted similarly in their ability to perform work. This includes, light duty in certain situations, alternative assignment or job duties, leave or other accommodations. Significantly, the new guidance makes clear that employers must allow women with physical limitations resulting from pregnancy or childbirth to take leave under the same conditions that other leave is generally available, and that pregnant workers may have impairments related to their pregnancy that qualify as a disability under the Americans with Disabilities Act, which can entitle such employees to additional accommodations.

For additional details regarding the updated guidance, you can review the Q&A issued by the EEOC here and read the complete guidance here.  You can also review our prior blog entry on pregnancy and family responsibility discrimination.

One of the main areas of controversy with the new guidance - in addition to its timing - is that the the accommodation obligations under the PDA under the EEOC's new guidance do not require that an employee actually have a disability under the ADA to be accommodated. Rather, the new guidance requires accommodation for pregnancy (and pregnancy related conditions) in the same manner that employees accommodate other employees for injury related leave or disability leave.  The EEOC's new guidance suggests that the following types of accommodations may be appropriate, depending on the circumstances:

- elimination of non-essential job functions (e.g. lifting);

- modifying workplace policies;

- providing teleworking opportunities, where feasible; 

- granting additional leave time; and

- temporarily reassignment to different positions

Of course, for employers with more than 50 employees in a 75 mile radius, obligations under the FMLA will interact with both the ADA and these new enforcement requirements under the PDA. In addition, employers will need to reexamine the interaction between light duty for workers' compensation claims and the PDA's new accommodation requirements.

The extent to which these changes will create new obligations will in large part depend on the U.S. Supreme Court's decision in Young v. United Parcel Service. Young involves the issue of whether the  PDA's provision (codified at 42 U.S.C. § 2000e(k)) that provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * * as other persons not so affected but similar in  their ability or inability to work" requires an employer that provides work accommodations to  non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  The Fourth Circuit held that PDA did not impose such an obligation and the U.S. Supreme Court agreed to review its decision.

For additional information regarding the PDA, ADA, FMLA or Workers Compensation, please contact one of the lawyers at Stavros Law P.C. at (801) 758-7604, or visit our website at www.stavroslaw.com.

Sexual Harassment Claims in Male Dominated Industries

In an article last week by USA Today, reporter Jessica Guynn details allegations relating to the purported sexism that is rampant in Silicon Valley's technology industry and the technology profession in general. It's a good read for employees and employers who operate in industries typically dominated by male employees, such as construction, firefighting, law enforcement, accounting/finance and politics.

Employers who operate businesses in such industries need to be extremely vigilant with implementing and enforcing sexual harassment policies and procedures. In addition, employers need to pay close attention to hiring, pay and promotion practices to avoid claims of gender discrimination in compensation, promotion and hiring decisions. Employees who work in such industries who suspect that they are being treated differently on the basis of gender should seek competent legal counsel who can assist employees with analyzing their situations and exploring possible legal remedies.  At Stavros Law, we have represented numerous employees and employers in gender discrimination and harassment claims, under Title VII of the Civil Rights Act, the Utah Anti-discrimination Act and the Equal Pay Act.

Sexual harassment and gender discrimination claims are one of the most frequently litigated employment law claims, and there is no indication that these claims are likely to decrease in the future.  As such, it is critically important that employers understand sexual harassment, when they can be held liable for harassment and how to avoid harassment claims. Similarly, employees should be familiar with what types of conduct qualify as sexual harassment, as well as how to report harassment and respond to inappropriate behavior in the workplace.

Sexual harassment is not limited to the typical quid pro quo situation involving a male superior and female subordinate.  It can include a hostile work environment, same-sex harassment, harassment based upon gender stereotypes, and harassment by non-employees such as customers and clients or other third-parties with whom employees interact while working for their employer. And of course, these claims can be asserted by both men and women.

In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), held that sexual harassment was actionable under Title VII whether committed by an employer's supervisor or another employee, and set forth the standards for determining liability for harassment. Following Meritor, the U.S. Supreme Court issued two significant decisions in 1998 - Faragher v. City of Boca Raton, 524 U.S. 775  and Burlington Industries v. Ellerth, 524 U.S. 742 (1998) which created the foundation for current sexual harassment law under Title VII of the Civil Rights Act and which attempted to clarify the standards for harassment.  For harassment by supervisors, employers are generally strictly liable for harassment, and can only avail themselves of an affirmative defense where no tangible adverse employment action occurs as a result of the harassment. Where no tangible adverse employment action is taken, an employer may escape liability if it can prove  (1) that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) that employee unreasonably failed to take advantage of such preventive or corrective opportunities. For harassment by co-workers or third-parties, the employer is only liable if it knew or should have known about the conduct and failed to take actions to stop it.

Development and implementation of a robust sexual harassment policy and complaint procedure is critical to minimizing the likelihood of sexual harassment and eliminating legal claims for harassment. Employers should have a detailed harassment policy that includes a clear complaint procedure and it should train employees on its policies on an annual basis. In addition, supervisors should receive additional training on how to identify, report and respond to allegations of harassment in the workplace. The importance of responding to complaints, thoroughly investigating the complaints and implementing prompt remedial action cannot be overemphasized.  This is especially true in industries where the workplace may be dominated by one sex, where the likelihood of "locker room" behavior and other inappropriate behavior is greater.

For more information about sexual harassment and gender discrimination claims, contact Stavros Law at 801-758-7604 or visit our website at stavroslaw.com.

Tenth Circuit Affirms U.S. District of Utah Judge Robert J. Shelby's Decision Barring Utah's Ban on Same-Sex Marriage

Last week, in a divided decision issued by Judge Lucero, the Tenth Circuit Court of Appeals, in Kitchen v. Herbert, Case. No. 13-4178, affirmed Judge Shelby's (U.S. District Court of Utah) decision holding that the Due Process Clause and Equal Protection Clause of the United States Constitution protect those who wish to marry a person of the same sex in the same way they protect those who wish to marry a person of the opposite sex, and declared that Utah's Amendment 3 to its constitution banning same-sex marriage did not withstanding strict scrutiny because the right to marry is a fundamental right protected by the Constitution.  In a 108 page opinion with included a lengthy dissent from Judge Kelly, the Tenth Circuit concluded that the State of Utah may not deny a citizen benefit of the right to marry based solely on the sex of the person the citizen chooses to marry.

For more information about the decision, and what Utah plans to do in response to the decision, you may want to read the Wall Street Journal's story or New York Times story on the decision.

Obviously, if the decision is affirmed or if the U.S. Supreme Court refuses to accept a petition for certiorari, there will be significant ramifications for Utah employers and employees in the areas of employment law. We will keep you updated and provide further guidance on the implications of this decision as the case moves forward.

If you have questions about employment or labor law issues, or want more details on this decision, please contact Stavros Law  at (801) 758-7604, or visit us at stavroslaw.com.