An expert on pregnancy discrimination issues says Illinois is helping break new ground in addressing the topic in the workplace, but high-profile legislation and pending litigation may provide further clarity across the country.
Tom Spiggle, an Arlington, Va., attorney who has written a book on such discrimination, said Illinois’ new law will likely lean heavily on federal interpretations, particular the Americans With Disabilities Act. The law stemming from House Bill 8 goes into effect Jan. 1.
“Reasonable accommodation is well-established in federal law, and I assume the Illinois Human Rights Act operates like most states do, very similar to federal antidiscrimination laws. And if that’s so then it’s probably very similar to the Americans With Disabilities Act, and reasonable accommodations is well defined in that. There is a bunch of case law on that,” he said.
Provisions outlined in the Federal Register further spell out reasonable accommodations, he said.
“I think what Illinois will do is look not only to their own state law but also to the federal ADA. HR folks are well versed, or should be, on the AHA, and I think (interpretation of) the state law will track very close to that.”
Much of the ADA was defined by court cases over a period of years, and Spiggle agrees there will be consternation among Illinois employers uneasy about the specifics.
“I can understand from an employers’ perspective it’s a substantial gray area. Determining reasonable accommodations is a very fact-intensive inquiry.”
The complexities of HB 8 come down to interpreting “reasonable accommodation” vs. “undue hardship” on the business, both of which are addressed in the law. For instance the employer may have to accommodate a pregnant employee’s request for such things as rest and bathroom breaks and limits on lifting.
The law allows the employer some leeway, but the employer has the burden of proving undue hardship. Among such hardships would be the cost of providing accommodations and having sufficient employees to do the work, if a pregnant worker is given time off.
HB 8 does require an effected employee to be under a doctor’s supervision, while the federal ADA does not, Spiggle said.
One of the reasons that Illinois and other states are acting on such laws is to take pregnancy out of a gray area — whether it is a disability or not. Federal courts have been very clear that a “normal pregnancy” is not considered a disability, Spiggle said.
“Where you run into this gray area is where you have health issues that arise out of the pregnancy. They may be independently covered by the ADA, but HB 8 will eliminate that ambiguity,” Spiggle said.
Other pending actions may affect how the subject plays out nationally.
One is a long-stalled bill in Congress, the Pregnant Workers Fairness Act, similar to Illinois’ new law, although Spiggle does not believe it will be passed any time soon.
There is also a case pending before the U.S. Supreme Court, Young vs. UPS, in which a pregnant worker was forced to take extended, unpaid medical leave because she was unable to meet lifting requirements. Young sued, claiming she had been the victim of gender- and disability-based discrimination under the Americans with Disabilities Act and the Pregnancy Discrimination Act. UPS argued it had no obligation to offer Young accommodations under the ADA because Young’s pregnancy did not constitute a disability.
The basic question, to be decided by justices some time next year, is, does the Pregnancy Discrimination Act require an employer to provide the same work accommodations to an employee with pregnancy-related work limitations as it does to employees with non-pregnancy related, work limitations?
Another related development comes by way of the U.S. Equal Employment Opportunity Commission, which recently issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. The items are all on EEOC’s website.
It represents the first comprehensive update of the commission’s guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject. This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.
In addition to addressing the requirements of the Pregnancy Discrimination Act, the guidance discusses the application of the Americans with Disabilities Act as amended in 2008, to individuals who have pregnancy-related disabilities.
The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.
Tom Spiggle’s new book is available on Amazon, called “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.”