EEOC Warns That a Duty to Accommodate May Extend After Childbirth

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By Eric B. Meyer

Seems one employer may not have received the memo. Now, the EEOC is taking aim.

Over the summer, the EEOC issued new guidance on accommodating pregnant employees. The Pregnancy Discrimination Act doesn’t require reasonable accommodation for pregnant employees. That is, unless you accommodate other employees who are not considered to have a disability under the Americans with Disabilities Act. In that case, you need to do the same for pregnant employees.

Got it? If not, Jeff Nowak has a good discussion here, focusing on light duty accommodations for pregnant employees.

When does pregnancy require employe accommodation?

But, there are situations in which, even if you don’t accommodate other non-disabled employees, you still must consider accommodations for pregnant employees. (And I’m not even talking about many state and local laws, which require those accommodations).

Indeed, while pregnancy is not an ADA disability, it may result in the onset of another condition that does qualify as an ADA disability and, thus, may require a reasonable accommodation.

For example, in a press release issued yesterday, the EEOC touts a new lawsuit in which it claims that an employer failed to accommodate an employee’s post-partum depression (a disability) and instead fired her.

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The EEOC claims that the company could have transferred the recovering new mom to an open vacant position for which she was qualified (that is a reasonable accommodation), but, instead, “forced her to find and compete for vacant positions within the company.” The EEOC further alleges that the employee did apply for three vacant positions for which she was qualified, but was not offered any of them. Instead, the company fired her.

Multiple laws and regulations to consider

Obviously, this is only one side of the story. But, it serves as a reminder to employers that the duty to accommodate may extend beyond childbirth and traverse federal statutes: the Pregnancy Discrimination Act and the Americans with Disabilities Act. (Plus, there’s the Family and Medical Leave Act to balance as well).

In other words, these issues can get hairy and don’t be bashful about talking to an employment lawyer to get straightened out.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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