pregnancy discrimination act

Last week, Attorney Robin Shea of Employment & Labor Insider proposed 10 rules of etiquette that “will save you from a pregnancy discrimination suit”.  Rule No. 1? Pregnancy is always good news.  Always. Always. Always.

If you haven’t read it, I’ll wait.

There are lots of rules regarding pregnancy that may come into play including FMLA, CTFMLA and the Pregnancy Discrimination Act.

But one rule in Connecticut that is often overlooked is found in Conn. Gen. Stat. 46a-60(a)(7).  The first part of this rule is fairly obvious; its illegal to fire someone because she’s pregnant. (If it’s not obvious, we should talk.)

But there are several other subsections that are not as well known. For today’s post, let’s focus on subsection (B) which states that an employer cannot  “refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy.”

Two things of note: First, this refers to “disability resulting from” pregnancy, not pregnancy itself.  So, if an employee is having a difficult pregnancy and is confined to bedrest, that’s the type of situation we are probably most concerned with because it would be viewed as a  “disability.” 

Second, what does a “reasonable leave of absence” mean? And isn’t this covered by FMLA? Well, not necessarily.  FMLA (and Connecticut’s equivalent) only cover employers who have 50 or more employees and even then, only cover employees who otherwise meet certain qualifications.  This rule covers all employers who have three or more employees and covers all pregnant employees.  

Can this “reasonable leave” run concurrently to FMLA, if eligible? Probably, though there isn’t much out there on the topic. A recent unpublished Superior Court case, Kenney v. DHMAS (Casemaker registration required), suggested that an employee could not make a claim under this section where the employee failed to provide the requisite documentation under FMLA.   

And what is “reasonable”? That too will probably have to be a figured out on a case-by-case basis. The Connecticut Supreme and Appellate Courts have yet to flesh that out.

For now, just know that when dealing with pregnant employees, there are more laws to consider than just FMLA.  And check with your trusted counsel to make sure you aren’t inadvertantly violating one of those rules.

Here’s an interesting question: Does the Pregnancy Discrimination Act protect an employee who is no longer pregnant?

Court: PDA covers maternity leave

A federal court decision in Connecticut yesterday says, yes. The case, Canales v. Schick Manufacturing, Inc. can be downloaded here.

The Pregnancy Discrimination Act (PDA) is part of Title VII and states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other person not so affected but similar in their ability or inability to work”.

In Canales, the employer had terminated the plaintiff approximately one month after she had given birth and while she was on materinity leave. It argued that the PDA didn’t cover her. The court disagreed  saying that the language applies “not just to women who are pregnant”.

Indeed, the court suggested that, at least within the Second Circuit (New York, Connecticut and Vermont), there were numerous cases that supported this proposition.

The court also found that the pregnancy discrimination claim under state law should also be handled in a similar fashion.

What’s the takeaway for employers? Understand the breadth of federal employment laws.  A maternity leave may invoke not just the PDA, but also FMLA, state FMLA, ADA and now Connecticut’s new paid sick leave law as well.

Any employer who has a good reason to terminate an employee out on such leave ought to realize that such a decision is going to be heavily scrutinzed.

 

UPDATED 5/19/09

The U.S. Supreme Court has been very busy this morning.

First, in a 7-2 decision, the Court held that an employer (inthis case AT&T) did not violate the Pregnancy Discrimination Act when it gave less retirement credit for pregnancy leaves that occurred prior to the passage of the act. 

In addition, the Court found that because the company’s pension payments were in accord with a bona fide senior seniority system, they were insulated from challenge under Title VII.  

You can read the court’s decision in AT&T v. Hulteen here (including an interesting dissent by the Court’s only female Justice, Justice Ginsburg.

The Workplace Prof blog did a good job at recapping oral argument several months back and predicting a fact-based decision.  Ultimately, I think the decision is a bit of a surprise, particularly because it was not a close vote. 

For employers who have long-standing pension plans, the decision provides some much needed clarity on what laws should apply for long-serving employees and whether the PDA applied retroactively.  However, this decision is not going to have much impact for most employers because changes to the law in 1978 now require employers to treat pregnancy-related absences the same as other medically-related conditions. 

In other business, the U.S. Supreme Court solicited the views of the U.S. government in the case of Lewis v. City of Chicago to decide the following question:

Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

(Note: An earlier version of this post suggested that the court granted certiorari in the Lewis matter; that has been corrected.)

(H/T SCOTUSblog)