Pregnancy Discrimination Claims Increase

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It is not a surprise that the EEOC is receiving a greater volume of discrimination charges given that the U.S. unemployment rate is now over 10%. Naturally, many people who have lost their jobs have claimed a discriminatory basis for their separation. But, it is surprising that a large number of pregnancy discrimination claims have come into the EEOC. Pregnancy discrimination is covered under Title VII via the Pregnancy Discrimination Act (PDA). The EEOC reported that it received 6,285 claims in FY 2008, up from 5,587 in FY 2007.

The 7th Circuit Court of Appeals recently held that the PDA covers a "potential pregnancy" after an employee claimed she lost her job because she had taken time off for fertility treatment. This ruling certainly expanded the scope of covered claims (at least in that Circuit).

In addition, on January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act of 2008 went into effect. The ADA was amended because "the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." Pregnancy can be covered under the ADA if it effects a major life activity (such a major complications requiring bed rest).

Further, the Family and Medical Leave Act (FMLA) allows employees with serious health conditions, including conditions related to pregnancy, to take leave on a reduced work schedule if it is “medically necessary.” A reduced work schedule is “medically necessary” if an employee has a serious health condition that requires a treatment regimen which is best accommodated by this type of leave. Thus, if a health care provider certifies a pregnant employee’s need for part-time work, an employer may have to modify the employee's work schedule.

As always, employers should make sure that they are in compliance with all laws and should consult with counsel if any questions arise.