Pregnancy and Related Medical Conditions: Workplace Issues and Solutions

• Publication year: 2003
• Pages: 99

32 Colo.Law. 99 Colorado Lawyer 2003.

2003, November, Pg. 99. Pregnancy and Related Medical Conditions: Workplace Issues and Solutions

---

99

Vol. 32, No. 11, Pg. 99

The Colorado Lawyer
November 2003
Vol. 32, No. 11 [Page 99]

Specialty Law Columns
Labor and Employment Review
Pregnancy and Related Medical Conditions: Workplace Issues and Solutions
by Richard L. Shearer, Dino A. Ross

This column is sponsored by the CBA Labor Law Forum Committee to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado

Column Editor

John M. Husband of Holland & Hart LLP in Denver - (303) 295-8228,
jhusband@hollandhart.com

About The Authors

This month's article was written by Richard L. Shearer, rshearer@irelandstapleton.com; and Dino A. Ross, dross@irelandstapleton.com. The authors are Directors of the Denver firm of Ireland, Stapleton, Pryor & Pascoe, P.C. - (303) 623-2700.

This article reviews employment laws covering pregnancy, childbirth, and related medical conditions, and provides guidance on relevant employment policies and practices.

An employer's response to an employee's pregnancy often is the result of the employer's social and cultural beliefs about pregnancy, rather than a clear understanding of the employee's rights and the employer's duties regarding pregnancy and related medical conditions.1 Despite these subjective beliefs, an employer's response to an employee's pregnancy must be consistent with the legal rights of the employee and the employer's legal duties. Accordingly, attorneys who advise employers and employees on employment issues must have a basic working knowledge of the laws that relate to pregnancy, childbirth, and related medical conditions.

This article reviews the federal laws that cover pregnancy, childbirth, and related medical conditions: the Pregnancy Discrimination Act ("PDA"), Family Medical Leave Act ("FMLA"), and Americans with Disabilities Act of 1990 ("ADA"). It also addresses case law on this topic and is intended to provide basic guidance to employers, employees, and the attorneys who advise them.

The Pregnancy
Discrimination Act

In 1976, the U.S. Supreme Court surprised many lawmakers and lawyers in determining that an employer's disability plan did not violate Title VII of the Civil Rights Act of 1964,2 even though it excluded pregnancy-related disabilities.3 Two years later, Congress passed the PDA.4 The PDA amended Title VII by expanding the prohibition against discrimination "because of sex" and "on the basis of sex" to include

pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions. . . .5

The PDA requires employers to provide women disabled due to pregnancy, childbirth, or related medical conditions with the same benefits as those provided other disabled workers.6 The PDA is interpreted and enforced through the substantive provisions of Title VII.7

Surprisingly, some employers still have maternity leave policies that treat pregnant employees differently than other temporarily disabled employees. For example, in Maddox v. Grandview Care Center, Inc.,8 an employee (nurse's assistant) requested six months maternity leave because of a pregnancy with medical complications that substantially restricted her physical abilities. The employee's medical history included difficulties during an earlier pregnancy, which resulted in a premature delivery and death of the infant. The employer advised the nurse's assistant that its written

policy limited maternity leave to three months. The employer also determined the employee had violated the company's absence policy by failing to report to work for three days without calling in each day, a requirement that did not apply to employees on leave with other types of disabilities.

The employee was given the choice of resigning or being terminated; she resigned and filed suit under the PDA.9 The Eleventh Circuit Court upheld the trial court's determination that the employer's maternity leave policy was discriminatory on its face because it limited maternity leave to three months, whereas leave of absence for "illness" could be granted for an indefinite duration.10

Other courts have reached a similar result, determining that a maternity leave policy that does not provide adequate leave to accommodate the period of disability associated with pregnancy may expose the employer to liability under a "disparate-impact" theory of discrimination.11

The courts also have addressed the issue of employers who provide different benefits to temporarily disabled employees than similarly situated pregnant employees. For example, the Tenth Circuit Court determined that an employer's modified-duty policy violated the PDA by limiting availability of modified duty to those employees who sustain work-related injuries while working for the employer.12 The employer argued it was entitled to limit modified duty to on-the-job injuries to reduce its workers' compensation costs.13

However, the court found the evidence presented by the Equal Employment Opportunity Commission could support a finding of pretext by the jury.14 The court appeared to place particular emphasis on the cultural biases and attitudes related to pregnant employees expressed by management, including statements that she was "too big to be working"; "[s]he should not have taken the job if [she] was going to get pregnant"; and "[w]e don't have any light duty for pregnant women."15

Most courts agree that an employer may terminate an employee for excessive absenteeism, even if the employee's pregnancy caused the excessive absenteeism.16 However, courts also are quick to find that an employer used excessive absenteeism as a pretext for terminating an employee due to pregnancy.17 Similarly, at least one court found that an employer may not take other actions with the intent - or probable effect - of increasing the pregnant employee's absences, resulting in termination due to excessive absenteeism.18...