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“As American as mom, baseball and apple pie,” the saying goes, but statistics suggest that motherhood may not be so venerated in the American workplace. As recently reported in this and other publications, over the past few years there has been a significant increase in the number of pregnancy discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) against employers. Since 2002, the number of such claims has increased by 31%. See Pregnancy Discrimination Charges: EEOC & FEPAs Combined: FY 1992-FY 2005, www.eeoc.gov/stats/pregnanc.html (last modified Jan. 27, 2006). According to the EEOC, employers paid $22.9 million in monetary benefits in 2004 and 2005 to women claiming pregnancy discrimination, and that amount does not include damages obtained through lawsuits. In December 2004, for example, a Wisconsin financial services company, Johnson Financial Group Inc., settled with the EEOC for $450,000 after the EEOC alleged that it discriminated against a woman by withdrawing a job offer as executive vice president after she disclosed that she was pregnant. According to the EEOC, the woman had applied for a position as executive vice president, and after a number of interviews and reference checks, a written employment offer was made to her, which she accepted. However, when she disclosed that she was pregnant, her start date was postponed and eventually canceled. The increasing number of claims for pregnancy discrimination is striking since it has been nearly 30 years since Congress passed the Pregnancy Discrimination Act of 1978 (PDA) to clarify that discrimination based on pregnancy constitutes unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Perhaps a brief refresher course is in order, particularly as Mother’s Day was just a week ago. Title VII makes it unlawful for an employer with 15 or more employees to discriminate against applicants and employees on the basis of sex. 42 U.S.C. 2000e-2(a)(1)-(2) (2006). As amended by the PDA, Title VII defines sex discrimination to include discrimination on the basis of pregnancy, childbirth or related medical conditions. 42 U.S.C. 2000e(k). The PDA’s ban on pregnancy discrimination extends to all aspects of the employment relationship, from hiring to separation. For example, an employer may not refuse to hire a pregnant woman because of her pregnancy or because of a pregnancy-related condition. 29 C.F.R. 1604.10(a). Likewise, a female employee disabled by pregnancy must be afforded the same benefits and accommodations as other disabled and sick employees. For instance, employees disabled by pregnancy must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits. 29 C.F.R. 1604.10(b). Congress passed the PDA in direct response to the U.S. Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). In Gilbert, a class action was filed challenging General Electric’s disability plan. Under the plan, General Electric provided nonoccupational sickness and accident benefits to all of its employees, but excluded disabilities arising from pregnancy from coverage. The trial court and court of appeals each ruled that the exclusion of benefits for pregnancy-related conditions violated Title VII’s ban on sex discrimination. However, still void of any female justices, the Supreme Court held that the plan did not illegally differentiate among employees based upon gender, but rather legally removed “one physical condition,” i.e., pregnancy, from the list of compensable disabilities. The Supreme Court determined that the exclusion of pregnancy-disability benefits from the plan was not a pretext for discriminating against women, “since pregnancy, though confined to women, is in other ways significantly different from the typical covered disease or disability.” Bias against fertile women Following the enactment of the PDA, the next significant case regarding pregnancy discrimination heard by the Supreme Court resulted in a very different outcome than Gilbert. In International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, v. Johnson Controls Inc., 499 U.S. 187 (1991), a battery manufacturer had a policy barring all women (except those whose infertility was medically documented) from jobs involving actual or potential lead exposure exceeding Occupational Safety and Health Administration standards. Female employees filed a class action asserting that the policy constituted illegal sex discrimination. The trial court granted summary judgment for the employer. The 7th U.S. Circuit Court of Appeals affirmed because, among other reasons, it concluded that the employer’s fetal-protection policy established a bona fide occupational qualification under � 703(e)(1) of Title VII, allowing an employer to discriminate on the basis of “religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. 2000e-2(e)(1). However, the Supreme Court, which now included a female justice, Sandra Day O’Connor, held that the employer’s policy violated Title VII. The majority opinion stated: “The bias in Johnson Controls’ policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job.” Johnson Controls, 499 U.S. at 197. Moreover, the Supreme Court noted that the PDA sets forth a bona fide occupational qualification standard specific to pregnancy discrimination: Unless pregnant employees differ from others “in their ability or inability to work,” they must be treated the same as other employees. 42 U.S.C. 2000e(k). Thus, the Supreme Court concluded that the PDA prohibits an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job, a standard that Johnson Controls’ fetal-protection policy did not satisfy. Johnson Controls, 499 U.S. at 206. Since Johnson Controls, federal courts have continued to expound upon the full scope of the protections afforded to women by the PDA. For example, in Erickson v. The Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001), a district court held that an employer violated Title VII by excluding prescription contraceptive coverage from its employee health benefit plan. In Erickson, the plaintiff participated in a prescription drug plan offered by her employer. The plaintiff alleged that the plan’s exclusion of prescription contraceptives such as birth control pills violated Title VII. The district court agreed, stating that “when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics.” Id. at 1272. Because the plan excluded prescription contraceptives that are only used by women, its plan was deemed discriminatory. The court noted that the PDA “requires employers to recognize the differences between the sexes and provide equally comprehensive coverage, even if that means providing additional benefits to cover women-only expenses.” Id. at 1277. Importantly, the protections for pregnant women under Title VII also include protection against workplace harassment. The 9th Circuit illustrated this point in Dominguez-Curry v. Nevada Transportation Department, 424 F.3d 1027 (9th Cir. 2005). In that case, the plaintiff worked in the contract compliance division of the Nevada Department of Transportation. She alleged that her supervisor routinely made demeaning comments to women and told sexually explicit jokes in the workplace. On one occasion in particular, the supervisor stated to the plaintiff, “every woman that comes to work in our division gets pregnant . . . .I hope you don’t.” Then, after a woman who had recently been hired announced that she was pregnant, the supervisor commented, “the bitch knew she was pregnant when I hired her.” The trial court concluded that the supervisor’s conduct was not sufficiently severe or pervasive to support a hostile work environment claim. The 9th Circuit reversed. As explained by the 9th Circuit in Dominguez-Curry, in order to prevail on her hostile work environment claim, the plaintiff was required to present evidence that she perceived her work environment to be hostile and that a reasonable person in her position would perceive it to be so. The 9th Circuit determined that the plaintiff had presented sufficient evidence of a hostile work environment, particularly in light of the fact that the supervisor acknowledged that he frequently made jokes about women and that he would occasionally make comments about “husbands, ex-husbands, boyfriends, female problems and pregnancy symptoms.” Id. at 1036. Title VII is not the only law offering employment protection to pregnant women. Fifteen years after it passed the PDA, Congress enacted the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2600 et seq. The FMLA allows eligible employees of an employer with 50 or more employees to take up to 12 work weeks of unpaid leave in a 12-month period. The permissible reasons for taking leave under the FMLA include, but are not limited to, a pregnancy-related disability, the birth of a child and leave to bond with a newborn child. 29 C.F.R. 825.112. When an employee returns from FMLA leave, she is entitled to be returned to the same position she held when her leave began, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. 29 C.F.R. 825.215(a). State laws vary Depending upon the state, female employees may also be entitled to additional protection from pregnancy discrimination under state law. In California, for instance, women are protected against pregnancy discrimination by the Fair Employment and Housing Act. Interestingly, the same fetus-protection policy that the Supreme Court determined violated Title VII in its Johnson Controls decision discussed above was earlier deemed unlawful under California law by the California Court of Appeal in Johnson Controls Inc. v. Fair Employment & Housing Commission, 218 Cal. App. 3d 517 (1990). Women in California are also entitled to take up to four months of leave as a result of pregnancy-related disabilities and may still take up to 12 weeks to bond with their newborns. Cal. Gov’t Code �� 12945, 12945.2 (West 2006). Indeed, the level of protection offered pregnant women can vary depending upon the jurisdiction. For example, in Kocak v. Community Health Partners of Ohio, 400 F.3d 466 (6th Cir. 2005), the 6th Circuit ruled that a woman who was denied re-employment could not establish a claim for pregnancy discrimination even though she was asked by the defendant’s personnel manager whether she was pregnant or intended to have more children, and she was informed that her former supervisor would not rehire her because of the complications in scheduling caused by her past pregnancy. In contrast, in a recent California case, an employer was denied summary judgment when the plaintiff, a pregnant woman who was laid off in her seventh month of pregnancy along with approximately 75% of all other employees, claimed that her layoff was discriminatory based upon cryptic comments by management that she had “checked out” from her work as vice president of marketing. Kelly v. Stamps.com Inc., 135 Cal. App. 4th 1088 (2005). It therefore pays for employers to be familiar with not only Title VII’s prohibition on pregnancy discrimination, but also any state laws on the same subject. Employees should receive regular training on all forms of prohibited discrimination, including pregnancy discrimination. Moreover, employer policies should be reviewed for consistency with Title VII’s prohibition on pregnancy discrimination. Such efforts will help employers reduce their liability exposure and avoid significant embarrassment in the face of pregnancy discrimination claims. J. Scott Tiedemann is a partner in the Los Angeles office of Liebert Cassidy Whitmore. He represents public entities in labor and employment law matters, and he is a regular trainer on employment issues, including discrimination and workplace harassment.

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