P.A What Employers Should Know About Pregnancy Discrimination. State of Illinois Department of Human Rights

Transcription

1 1 P.A What Employers Should Know About Pregnancy Discrimination

2 2 Agenda 1. Introduction 2. P.A Other State and Federal Laws 4. Practice Tips Disclaimer: This presentation is for educational and informational purposes only, and is not to be considered legal advice

3 3 IDHR The (IDHR): an investigatory agency that administers the Illinois Human Rights Act (IHRA), which prohibits discrimination in the workplace. The Department conducts neutral and fair investigations Information on IHRA and IDHR s Rules and Regs can be found on:

4 4 P.A Why the need for P.A ? 1. Current laws are insufficient 2. Many pregnant workers are forced to take leave or lose their jobs 3. Many pregnant workers are single mothers or primary breadwinners 4. Employers routinely accommodate employees with disabilities 5. Women are 50% workforce, of which 54% are of childbearing age 6. Many women can continue working while pregnant if accommodated

5 5 P.A Pregnancy Accommodation: Employers cannot refuse to hire, segregate, or act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of pregnancy (Section 2-102(I))

6 6 P.A Employers cannot refuse to reasonably accommodate a pregnant employee unless the accommodation will impose an undue hardship on the employer (Section 2-102(J)(1)) Reasonable Accommodation: a modification or adjustment in job application or in the way a job wanted or held is customarily performed that will enable someone affected by pregnancy to be considered for or able to do the job Examples: more bathroom breaks, breaks for increased water intake, private nonbathroom space for expressing breast milk and breastfeeding, etc.

7 7 P.A Undue Hardship: an action that is prohibitively expensive or disruptive when considered in light of: The nature and cost of the accommodation The overall financial resources of the facility The overall financial resources of the employer The type of operation(s) of the employer

8 8 P.A Employer Rights: an employer can ask the employee to provide documentation from the employee s healthcare provider if: The employer also requests similar documentation for conditions related to disability; The Request is job related and consistent with business necessity; and The Request is limited to the need/medical justification for the requested accommodation Documents: a description of the reasonable accommodation, date the reasonable accommodation became advisable, and the probably duration thereof

9 9 P.A Employers cannot: Deny employment opportunities or benefits or to take an adverse action against an otherwise qualified job applicant or employee who has asked an employer to make reasonable accommodations to a pregnant employee (Section 2-101(J)(2)) Retaliate against an employee because the employee requested or was provided a reasonable accommodation (Section 6-101(A)) Require a pregnant employee to accept an accommodation, which the employee did not request and the employee chooses to decline (Section 2-102(J)(3))

10 10 P.A Employers cannot: Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the employee (Section 2-102(J)(4)). Fail to post in a conspicuous location, or fail to include in any employee handbook information concerning an employee s rights under this Public Act (Section 2-102(K)) Employers must comply with P.A and become familiar with the language in the law. When in doubt, consult an attorney.

11 11 Illinois Nursing Mothers in the Workplace Act An employer shall provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. An employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where an employee can express her milk in privacy.

12 12 Pregnancy Discrimination Act Requires that employers with 15 or more employees treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. Pregnant workers are protected from discrimination based on: Current pregnancy Past pregnancy Potential or intended pregnancy Medical condition related to pregnancy or childbirth

13 13 Young v. United Parcel Service The United States Supreme Court will decide whether the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are similar in their ability or inability to work.

14 14 Americans with Disabilities Act An employer may not discriminate against a woman whose pregnancyrelated impairment is a disability under the ADA and must provide her with a reasonable accommodation if needed, unless the accommodation would result in undue hardship.

15 15 Family and Medical Leave Act Under the FMLA, an eligible employee may take up to 12 workweeks of leave during any 12-month period for one or more of the following reasons: Birth of a Child Adoption or placement of a foster child in the home Serious health condition of employee s spouse, child or parent When the employee is unable to work because of a serious medical condition If a pregnant employee takes leave under the FMLA, the employer must restore the employee to her original job or to an equivalent job with equivalent pay & benefits.

16 16 Patient Protection and Affordable Care Act Section 4207 requires employers to provide reasonable break time for hourly breastfeeding employees to express milk and provide a private place (other than a bathroom) for this purpose.

17 17 Best Practices Develop strong practices and policies based on the IHRA, PDA & ADA Train managers/supervisors about their responsibilities related to pregnancy, childbirth and related medical conditions Conduct employee surveys and review employment policies and practices to identify any policies that may disadvantage women affected by pregnancy, childbirth, or related medical conditions or that may perpetuate the effects of historical discrimination Prior to hiring, focus on an applicant s ability to perform the job duties. Do not ask questions about an applicant s pregnancy status, children, plans to have children or other related issues.

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