Franchisee and Franchisor are faced with a similar legal issue: when an employee becomes pregnant what type of work place accommodations may she demand?

The answer to this question depends largely on the individual fact pattern of each case. It also depends as to whether the facts are being analyzed under state or federal law. Broadly speaking, however, under federal law an employer does not owe a pregnant employee special accommodations simply because she is pregnant. At the same time, an employer may not withhold an accommodation that normally would have been granted to a non-pregnant employee simply because the employee is now pregnant.

An analysis of the facts begins with an understanding of the laws that affect and impact the analysis. [For purposes of this brief article, I will primarily analyze the federal laws. A few states such as California have laws that provide additional protection to the employee.] The primary federal statute in this are is the Pregnancy Discrimination Act (“PDA”). Claims have also been brought under the American with Disabilities Act and the Family Medical Leave Act. The PDA is the one most often utilized by plaintiffs. The PDA amended Title VII of the Civil Right Act. In pertinent part the PDA states:

“(k) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise”.

In Armindo v. Padlocker, Inc., 209 F. 3d 1319 (11th Cir. 2000) the plaintiff argued that she was discriminated against on account of her pregnancy when she was terminated in from her job as an entry level clerical employee after three months of probationary employment. The employer contended that the plaintiff was terminated because of her poor attendance record. The court framed the issue thusly:

“The issue, generally stated, is whether the PDA requires an employer to treat favorably a pregnant employee whose pregnancy caused her to miss work, as compared to a non-pregnant employee who missed work on account of a different medical condition.”

The court held that “the clear answer is that the PDA does not require favorable treatment in this respect.” Citing the case of Armstrong v. Flowers Hosp., 33 F.3d 1308 (11th Cir.1994), the court stated that:

“although the language of the statute does not address whether employers are required to give favorable treatment to pregnant employees, statements in the legislative history “make it clear that the PDA does not require employers to extend any benefit to pregnant women that they do not already provide to other disabled employees.” See Armstrong, 33 F.3d at 1316-17. In support of its holding, the panel cited the Seventh Circuit case of Troupe v. May Dept. Stores Co., 20 F.3d 734, 737-39 (7th Cir.1994), drawing from it the principle that while the PDA requires the employer to ignore the pregnancy, the employer need not ignore absences, unless the employer likewise ignores the absences of nonpregnant employees.” [emphasis added] See Armstrong, 33 F.3d at 1317.

With Armstrong as a guide to how far the courts are willing to extend the PDA, what exactly does the PDA protect? Under the PDA and according to the EEOC the following obtain:

–An employer cannot refuse to hire someone because she is pregnant or has a pregnancy-related condition.
–An employer can’t require a pregnant women to submit to special procedures in order to determine whether she can perform her job duties unless the employer requires all employees to submit to those procedures.
–An employer must treat a pregnant woman who can’t perform her job due to a medical condition related to her pregnancy the same way he treats all temporarily disabled employees.
–An employer may not keep a pregnant woman from working or prohibit a woman from returning to work after giving birth.
–Any employer-provided health insurance plan must treat pregnancy-related conditions the same as other medical conditions.
–Pregnant employees cannot pay a larger health insurance deductible than other employees pay.

While there may be any number of accommodations requested there have been a few common accommodations that have been litigated rather extensively in the courts. Foremost among them is breast-feeding and/or the expressing of breast milk in the work-place. For the most part, women have been unsuccessful when suing their employers for breast-feeding related claims.

Professors Boller and Peterson have concluded that “[t]he courts have also not been receptive to the assertion that breast-feeding is a condition contemplated by the 1978 PDA. Sex discrimination may occur under the PDA if an employer discriminates on the basis of pregnancy, childbirth or related medical conditions. Breast-feeding and weaning are both considered to be natural concomitants of pregnancy and childbirth, but they are not specifically covered by the law. The PDA relates exclusively to disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth or recovery from any of these conditions. Other courts have concluded that the PDA provides protection only to the condition of the mother, not to the disabilities or conditions of the child. See http://www.entrepreneur.com/tradejournals/article/160714657_1.html

In Wallace v Pyro Mining, 789 F.Supp. 867 (W.D.Ky. 1990). Aff’d. without opinion 951 F.2d 351 (6th Cir. 1991) the district court held that

“[n]othing in the Pregnancy Discrimination Act, or Title VII, obliges employers to accommodate the child-care concerns of breast-feeding female workers by providing additional breast-feeding leave not available to male workers. If Congress had wanted these sorts of child-care concerns to be covered by Title VII or the Pregnancy Discrimination Act, it could have included them in the plain language of the statutes.”

Plaintiffs have also tried to bring claims under the Americans with Disabilities Act (“ADA”). In the case of Martinez v. N.B.C. Inc, 84 FEP Cases 1683 (1999) the plaintiff was a producer for NBC. She alleged that NBC had “failed to provide her with a safe, secure, sanitary and private area to breast pump” and that her complaint to human resources on same was followed by retaliatory conduct, verbal harassment and work schedule changes. Martinez filed a charge of discrimination with the EEOC complaining that lactation constitutes a disability within the meaning of the American with Disabilities Act. In dismissing this claim, the court noted:

“Every court to consider the question to date has ruled that ‘pregnancy and related medical conditions’ do not, absent unusual conditions, constitute a [disability] under the ADA.”

As stated above, some states have enacted laws that grant additional work-place protection to pregnant women and/or nursing mothers. As to breast-feeding in the workplace, the following states have explicit statutes that either require the employer to make reasonable efforts to accommodate a female employee who needs to breast-feed or suggest employers do so: Ark., Cal., Col., Ga., Ill.,Ind., Maine, Minn., N.M., N.Y., N.D., Ok., R.I., Tenn., Vt., Va., Wash, and Wy. To understand the laws as they apply to each state one needs to review carefully both the state law and how the law has been interpreted by the state courts.

Understanding fully the myriad laws regarding what constitutes reasonable accommodation in the work-place is best left to an employment lawyer. This article was meant merely to give an over-view of the law as it currently stands. If faced with a request by an employee for a special accommodation due to her pregnancy or recent pregnancy, one is well advised to speak to a lawyer. Simply calling H.R. is not good enough. Many times a Human Resource department is staffed with flow-chart myrmidons. The type of legal analysis that is required for a complete understanding of an employers rights and obligations in this area of the law should be handled by a qualified legal professional.