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Pregnancy Discrimination

EEOC Cracks Down on Pregnancy Discrimination

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In October 2016, the Equal Employment Opportunity Commission (EEOC) approved an updated Strategic Enforcement Plan from 2017 to 2021, to further its commitment to focus on “activities that are likely to have an impact in advancing equal opportunity and freedom from discrimination in the workplace.”

One area of focus is accommodations for pregnancy-related limitations. Although the EEOC’s focus on pregnancy discrimination dates back to 2012, the growing number of charges filed and the increased complexity of discrimination laws has made the issue a continued priority.

A Growing Trend

The EEOC receives an average of over 3,500 charges of pregnancy discrimination each year. Issues involved in lawsuits have been fairly consistent and mainly include charges of discharge based on pregnancy, and differing terms and conditions of employment based on pregnancy, such as closer scrutiny and harsher discipline for pregnant individuals, suspensions pending receipt of medical releases, medical examinations that are not job-related or consistent with business necessity, and forced leave.

In 2017 alone, thus far, the EEOC has settled multiple pregnancy discrimination cases for a total amount exceeding $400,000 in monetary damages. Additionally, the EEOC referred a lawsuit, United States of America v. School Board of Palm Beach County, Florida, to the Department of Justice, which settled early this year for $350,000. These numbers indicate a huge liability that employers may face and reiterate the importance of understanding laws that affect pregnancy in the workplace and the need to implement best practices to ensure compliance with such laws.

The EEOC enforces multiple laws that affect pregnancy in the workplace, namely the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act Amendment Act (ADAAA), other requirements under the Family and Medical Leave Act (FMLA) and various state laws.  However, the EEOC has indicated its main focus to be centered on accommodating pregnancy-related limitations under the ADAAA and the PDA, so this post centers on those two laws.

 Understanding Pregnancy Discrimination Act

The PDA generally prohibits a broad range of discriminatory employer conduct in the same way that discrimination based upon other protected class characteristics is prohibited under Title VII. Therefore, the PDA covers pregnancy and the whole childbearing process in all aspects of employment, including hiring, firing, promotions, benefits and treatment in comparison to nonpregnant employees.

Adverse treatment of pregnant women often stems from stereotypes and assumptions regarding job capabilities and commitment to the individual’s job. Decisions based upon these stereotypes and assumptions are violation of the PDA, even if they are made unconsciously or with the intent of benefiting the employee For instance, assigning an employee to light duty without their request, because the employer feels it would be in the best interest of the pregnancy.

Under the PDA, an employer may not discriminate in employment decisions against an employee on the basis of pregnancy, childbirth or related medical conditions, and must make those decisions based on the same criteria= as other persons who are similar in their ability or inability to work. However, the PDA contains no reasonable accommodation requirement specific to any condition related to pregnancy. This essentially means that employers should not treat a pregnant woman any differently because of her pregnancy. For example, if a woman is temporarily unable to perform her job duty due to a pregnancy or childbirth-related medical condition, her employer must treat her in the same way as it would treat any other temporarily disabled employee. If an employer allows temporarily disabled employees to take disability leave, then the employer also must allow an employee who is temporarily disabled due to a pregnancy or childbirth-related medical condition to take disability leave. If an employer has a policy which allows injured employees to request light duty assignments, a pregnant employee with medical restrictions should be allowed to request light duty assignments.

So, what then is considered a “pregnancy or childbirth-related medical condition” that would entitle a pregnant employee to accommodations? The ADAAA provides some guidance on this issue.

Understanding the Americans with Disabilities Act Amendment Act

The ADAAA protects individuals from employment discrimination based upon disability. Generally, pregnancy itself is not considered a disability under the ADAAA, but impairments related to pregnancy may qualify as disabilities. The threshold for what impairments qualify as a disability has varied among the circuit courts. However, the EEOC provided examples of pregnancy-related impairments that may be substantially limiting under the ADAAA, such as pregnancy-related anemia, pregnancy-related sciatica, gestational diabetes and pre-eclampsia.

An employee may be entitled to reasonable accommodations for limitations resulting from pregnancy-related conditions that rise to the level of a disability under the ADAAA. These accommodations can include, but are not limited to, modifying work schedules, temporary assignment of light duties or altering how a certain job function is performed. Employers may deny a reasonable accommodation to a disabled employee only if it would result in an undue hardship to the employer.

This article is the first in a series about pregnancy leave. To learn more about how employers can address potential confusion with pregnancy related laws, read Addressing Employer Confusion With Pregnancy Related Laws: What to Expect When Your Employees Are Expecting, for more details about terms associated with leave taken for pregnancy or childbirth-related purposes, check out Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave and for details about Pregnancy leave requirements, visit Pregnancy Leave: What’s Required? 

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.


Kristin Fisher

by Kristin Fisher


Author Bio:

As a compliance attorney for Paycom, Kristin Fisher monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Fisher earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her fiancé.

Prevent Pregnancy Discrimination in the Workplace

7 Best Practices to Help Prevent Pregnancy Discrimination in the Workplace

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Discrimination laws regarding pregnant women apply in every area of employment — including hiring, firing, seniority rights and job security. Employers who violate these laws potentially face huge fines and legal fees. Therefore, it is imperative to take measures to reduce the risks of pregnancy discrimination and to provide your pregnant employees with a safe and non-discriminatory work environment.

7 Best Practices

  1. Know the law. The best way to avoid pregnancy discrimination in your company is to understand the applicable federal, state and local laws, and stay up-to-date on them.
  2. Have an employee handbook or other written policies in place to address the requirements under the Pregnancy Discrimination Act, Americans with Disabilities Act Amendments Act, Family and Medical Leave Act and other applicable state and local laws. Review and update these policies regularly, and follow them always.

Evaluate your current policies to ensure they do not disproportionately impact pregnant workers. If they do, determine whether they are necessary for the business’s operations. Include policies related to reasonable accommodations, benefits, paid or unpaid leave and time off, break times, discrimination, harassment and retaliation.

  1. Develop a procedure for investigating and responding to pregnancy discrimination complaints.
  2. Engage in dialogue with pregnant employees regarding reasonable accommodations. The U.S. Equal Employment Opportunity Commission and the courts look closely at the interactive process documentation; therefore, establishing and documenting that process will help ensure a good-faith effort toward compliance has been made.
  3. Maintain updated job descriptions that reflect the duties, functions and competencies of job positions.
  4. Train managers and employees regularly about their rights and responsibilities.
  5. Educate management on company policies. Ensure that employment decisions are not based on management’s view of what it thinks is in the best interest of the pregnant employee. Take into consideration how the company treats non-pregnant employees who are similar in their ability or inability to work.

The EEOC has issued enforcement guidance on pregnancy discrimination, which can be found here, listing its suggested employer best practices.

For more information on pregnancy discrimination in the workplace, visit the additional posts on this topic:

 

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

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Posted in Blog, Compliance, Employment Law, Featured

Kristin Fisher

by Kristin Fisher


Author Bio:

As a compliance attorney for Paycom, Kristin Fisher monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Fisher earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her fiancé.

4 Ways to Prevent Sexual Harassment

4 Ways to Prevent Sexual Harassment in the Workplace

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Online searches of the term “sexual harassment” in recent months are not only up, but way up: ever-changing, but approximately more than 500%, per a Google Trends report. For HR and business leaders, this startling increase indicates your people seek answers.

The recent surge in internet searches not only highlights the current tidal wave of harassment scandals, but also calls into question the effectiveness of today’s anti-harassment training. The U.S. Equal Employment Opportunity Commission (EEOC) has long cited training as a critical component to prevention, yet the number of EEOC charges over the years remains largely unchanged.

Get Your Workforce ‘On Course’ with Paycom Learning

It’s easy to surmise this number should be decreasing if training is effective, but it’s not that simple. Anti-harassment training is just one step to creating a safe workplace culture.

Why you need more than training

In a recent Saturday Night Live sketch, cast member Cecily Strong played a frantic HR representative quizzing an employee about anti-harassment dos and don’ts. “There’s no wrong answer,” she said, “just super-wrong answers.”

It’s a comical, but realistic take on how some companies use anti-harassment training as a cure-all. While training is one step in the right direction toward prevention, it’s time companies offer a full solution.

The EEOC’s own task force emphasizes training as an essential component: “However, to be effective in stopping harassment, such training cannot stand alone but rather must be part of a holistic effort undertaken by the employer.”

Steps toward prevention

Here are four steps to creating a culture sincere about preventing harassment, based on EEOC practices:

One: Set the bar. Make it known your business has a zero-tolerance policy for inappropriate workplace behavior. Your expectations must apply to all levels of the organization, without exception.

Two: Create a written policy. Don’t stop at defining unacceptable behavior; include the proper way to report it. Ensure whoever handles these complaints can remain neutral and has the appropriate knowledge and authority to investigate and resolve complaints. Allocate appropriate resources to address and resolve any anti-harassment claims, and stick to your policies.

Three: Train all levels of your organization, from senior leaders to entry-level employees, on what constitutes discrimination and harassment, and your process for reporting. Ensure you have different trainings for employees and supervisors. Training should be relevant and engaging to your workforce. Say goodbye to plugging in the DVD player; invest in interactive training that includes knowledge checks and nuanced scenarios, as opposed to an outdated video highlighting only overt behavior.

Four: Communicate your expectations early in the employee onboarding process and throughout their employment. Use HR technology that allows for insight into the last time an employee reviewed your training or policies. Take advantage of auto-enrollment rules to ensure policies and trainings are reviewed by everyone annually.

Keep in mind, there is no surefire way to eliminate harassment or discrimination. For example, as a society, we’ve long enacted laws against criminal behavior, but we’re not naive enough to believe simply having those laws will eliminate crime altogether; it’s a way to communicate and clearly enforce expectations.

The goal of your policies, training and processes should be similar: Emphasize what’s not acceptable behavior, encourage reporting and build confidence with your workforce that you will investigate every complaint, so you may bring them all to an appropriate resolution.

For more information, check out Sexual Harassment: Making the Workplace Safe for Everyone, our post about how organizations can learn from the Harvey Weinstein effect.

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Posted in Blog, Compliance, Featured

Rachel Hittle

by Rachel Hittle


Author Bio:

Rachel Hittle oversees a team of content creators in Paycom’s learning and development department. Together, they design e-learning courses relevant to today’s employees on topics ranging from compliance to leadership. A highlight of her career was designing and implementing the company’s first client certification program. Prior to joining Paycom, the University of Kansas journalism graduate worked as a television news reporter.

Seasonal Workforce

3 Steps to Retaining a Talented Seasonal Workforce

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We’ve now reached the busiest time of year for many employers – even if you’re not in the retail industry. And your seasonal employees might be an important asset long after the holiday rush.

Thanks to the lowest unemployment rate in 16 years and the rising gig economy, this past year has proven especially challenging for employers searching for the right talent. Identifying and hiring new employees is growing more difficult and expensive, so what can your organization do to retain the top performers of your temporary seasonal workforce for next year’s needs?

In episode 25 of the HR Break Room podcast, we met with Science Museum Oklahoma’s guest relations director, Melody Muniz, and the vice president of programs, Clint Stone, to learn how they successfully identify and retain the top performers from their seasonal workforce.

Here are the three main takeaways from our discussion.

1. Identify top performers today

To prepare for future busy seasons, identify the seasonal employees who currently shine with your customer base. Make sure you’re on their radar six months to a year in advance; during the offboarding process, ensure that managers communicate to top performers that they are welcome to return for the next peak season.

2. Foster a culture that inspires returning employees

Muniz and Stone discussed how their museum’s culture inspires those seasonal employees to return year after year. Many of their top-performing employees were frequent museum visitors years before they were old enough to join the workforce. Because of their fond childhood memories, they now bring their passion for the museum’s mission to work with them.

Science Museum Oklahoma leaders strive to put the mission first – one of dedication to learning and discovery – when making decisions that may impact its workforce. Its culture is dedicated to learning and discovery. For example, before the museum opens each morning, all employees are invited to participate in daily fun and educational activities that provide growth opportunities. More than merely wanting to hire a seasonal workforce, this organization also wishes to inspire the wonder and relevance of science in each employee – no matter how long they may remain on the payroll.

This gives the museum a competitive advantage over other seasonal employers. Consider how your unique culture can inspire your seasonal employees.

3. Use technology to stay in touch

Science Museum Oklahoma is able to retain many of its best seasonal employees by using tech to keep in touch. According to Muniz, messenger apps, email and multiple social media platforms play an important role in staying connected with seasonal talent throughout the year. Your existing seasonal employees can help you reach future employees with similar availability. For example, when implementing a retention strategy for high school and college-aged talent, reach out to gauge their interest in returning a few months before seasonal breaks and major holidays. That can help you identify how early to post open positions.

With the holidays now upon us, this is a great time to build and implement a seasonal employee retention strategy for future peak seasons. Start today by ensuring that your best ones aren’t walking out the door before you make them an offer to return.

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Posted in Blog, Featured, Hospitality, Millennials, Restaurant, Retail, Talent Acquisition, Talent Management

caleb.masters

by Caleb Masters


Author Bio:

Caleb is the host of The HR Break Room and a Webinar and Podcast Producer at Paycom. With more than 5 years of experience as a published online writer and content producer, Caleb has produced dozens of podcasts and videos for multiple industries both local and online. Caleb continues to assist organizations creatively communicate their ideas and messages through researched talks, blog posts and new media. Outside of work, Caleb enjoys running, discussing movies and trying new local restaurants.

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