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New Pregnancy Discrimination Regulations

May 6th, 2009 Posted by Amelia

Employers should be cautious about routinely requiring fitness-for-duty certification from pregnant workers, after a recent EEOC discrimination suit.

A Kinston, North Carolina employer paid $300,000 to settle a claim of pregnancy discrimination brought by the federal Equal Employment Opportunity Commission. That covers back pay and compensatory damages for the affected employees.

The EEOC charged that since 2002, the employer has subjected pregnant employees to different terms and conditions of employment, compared to non-pregnant employees.

Specifically, the EEOC charged that the employer required pregnant women to furnish a full medical clearance in order to continue working – even if the employee took no time off and gave no indication that she was unable to perform her usual duties. This was in marked contrast to the treatment of non-pregnant employees, who were often permitted to return to work after an absence without a complete medical clearance.

This suit involved Britthaven, Inc. a corporation that owns and operates a chain of nursing homes and assisted living facilities. This specific incident involved an employee at the Carolina Commons facility in Greensboro. However, Britthaven apparently imposed similar restrictions on pregnant workers at some of its other 53 facilities in North Carolina, Virginia and Kentucky.

The EEOC contends that this practice resulted in employees being forced to take medical leave or were terminated despite the fact that they were fully able to perform all their job duties.

“Working women who chose to have children, should not be penalized or treated differently than other employees simply because they are pregnant,” said Lynette Barnes, regional attorney for the EEOC.

Speaking from her Charlotte office, Barnes added, “Employers must remember that paternalistic attitudes toward pregnant employees that result in unequal treatment at work violate federal law. The EEOC will continue to vigorously enforce workplace civil rights laws to remedy and eradicate pregnancy discrimination.

This ruling is somewhat confusing, because under the 2009 FMLA regulations, employers are permitted to require an employee to provide fitness-for-duty certification when they have reason to believe that the employee has had a disabling condition. Apparently, however, merely disclosing that she is pregnant is not a disabling condition for an employee. The EEOC has not yet written regulations addressing this topic. As soon as they do, the complete regulations will appear here.

In the past, employers have often required that pregnant workers in the last 30 to 60 days of a pregnancy. That practice is now called into question, unless the employee has taken time off or otherwise indicated that she has restrictions or limitations.