Recent changes in the law relating to pregnancy were tucked away in the $1.7 trillion package recently passed and made law. The Pregnant Workers Fairness Act is in the package. It tracks the Americans with Disabilities Act (ADA) and adds protections for pregnant applicants and employees. This applies to employers with 15 or more employees. It requires reasonable accommodations for known limitations arising out of pregnancy, childbirth, or related medical conditions. It also adds the “interactive process” to assist in determining those accommodations. That “interactive process” means that employers and employees with pregnancy related disabilities, who request accommodations, must work together to come up with accommodations.

Many employers are going to have 15 or more employees- so I expect an increase in these type cases. But note that the mere existence of pregnancy believed to be discrimination without a request by the employee for accommodation, is not enough to invoke the “interactive process”. The key there is that the employee must invoke that process by requesting an accommodation and then participate in the interactive process in good faith. “[A] decision-maker who lacks actual knowledge of an employee's disability cannot fire the employee ‘because of' that disability.” Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005). So if you are pregnant and concerned over continued performance of your job, you should request an accommodation. You do not have to specify the accommodation needed, but rather ask for it. Then there should be a gathering of information and exploration of accommodation options. 

Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320 (11th Cir.2000) notes that, “Title VII prohibits employment discrimination on the basis of sex. See 42 U.S.C. § 2000e–2(a).The Pregnancy Discrimination Act amended Title VII to provide that discrimination on the basis of sex includes discrimination “on the basis of pregnancy, childbirth or related medical conditions.” Id. § 2000e(k). “The analysis for a pregnancy discrimination claim is the same type of analysis used in other Title VII sex discrimination suits.” Thus, this added change will likewise be handled like a Title VII case.

“It is possible that there may be instances in which the employee never requests the accommodation, knowing full well that it will not be granted. It is true that a pregnant employee may establish a prima facie case by showing a justifiable belief that the employer's discriminatory practices made application a futile gesture.” E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1274 (11th Cir. 2002). The better practice, however, is for the employee to request that accommodation notwithstanding, and then participate in the process in good faith. See, e.g., Harvey v. America's Collectibles Network, Inc., 2011 WL 182864, *8 (E.D. Tenn. Jan. 20, 2011) and Williamson v. Clarke County Dept. of Human Resources, 43 NDLR P 161, 13 n.16 (S.D. Ala. 2011).

The complainant's failure to participate in the process may destroy the case, but employer's failure to participate does not assure a win in the case. Employee should ask to expect to receive. Even then the complainant must still meet all the elements required under Title VII to prove her case.

There was a second change added in the package as well. Employers with 50 or more employees must comply with the PUMP Act (Patient Protection and Affordable Care Act). As the name implies, it involves breast feeding. The package modifies and expands the DOL's lactation rules which date back to 2010. Non-exempt workers (hourly wage workers) must already be given a private room (not a bathroom) and time to lactate and express breast milk for up to one year after birth per current DOL rules for the larger 50+ employers. Now the PUMP Act extends that time period to express milk to 2 years that will be considered paid time (same thing as working during your lunch hour even though eating).

To invoke the act, the employee must give notice to an employer of 50 or more of non-compliance, and that triggers 10 days to comply. Failure to comply may again open up a claim against the employer.