Pregnancy Discrimination Claims Increase

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.

Take Proper Care with Layoffs

With the economy spiraling downwards, many companies have chosen to layoff staff in an effort to reduce costs or to streamline operations. Layoffs raise a number of legal issues that make it imprudent to simply let an employee go without forethought.

1. If you plan on offering an employee severance, you must consider that if the offer differs between similarly situated employees (either offered in the past or at the same time), you may run afoul of the federal employment discrimination laws. You must be mindful of laying off persons in protected classes, such as race, religion, disability, national origin, or sex. If you offer a lesser severance to an employee in a protected class, you may be facing an EEOC discrimination charge.

2. Severance agreements must comply with certain laws and contain certain disclosures in order to be legally enforceable. This is particularly true when you are offering severance to an employee over the age of 40. The Older Workers' Benefit Protection Act which is contained within the Age Discrimination in Employment Act, contains certain requirements that mandate an employee be able to make a "knowing and voluntary waiver" if the severance is in exchange for giving up any claims against the company that the employee might have.

3. If you are closing an entire facility or laying off a group of employees, you may be required to give 60 days notice prior to the layoffs under WARN Act.

4. If you have laid off employees based on "least best" performers, you should have solid documentation to support the reasons why the employee was a low performer. If you have not maintained documentation on performance, you will have difficulty in challenging an unemployment claim or in justifying why you laid a certain employee off over another (which again, may get into a discrimination claim).