SHRM Legal Conference Gets Under Way

You’ve probably heard of the best-selling book What To Expect When You’re Expecting. Well, what about what to expect when your employees are expecting? This was, in fact, the title of a session during the first day of SHRM’s 2015 Employment Law & Legislative Conference this Monday, where employment attorney Courtney Perez reminded a packed room that the Equal Employment Opportunity Commission has made targeting pregnancy discrimination one of its top enforcement priorities.

“This topic is personal for me,” said Perez, a working mom of two and the expectant mother of a third. As a senior associate at Dallas-based Carter Scholer Arnett Hamada & Mockler, she advises clients regularly on how to avoid discriminating against employees and ending up on the wrong end of a lawsuit.

Mothers make up a huge chunk of the workforce: 57 percent of women with children 1 years old or younger hold down jobs outside the home, according to the Bureau of Labor Statistics, while 62 percent of women who give birth are in the workforce at the time and 40 percent of U.S. households with children younger than 18 have mothers who are the sole or primary breadwinners, she said.

As the number of women in the workforce has grown, so too has the rate of pregnancy discrimination: The number of pregnancy discrimination charges filed with the EEOC went up by 35 percent between 1997 and 2008, said Perez. One of the biggest areas of contention revolves around the topic of light duty for pregnant workers: The Supreme Court is expected to announce its ruling soon in Young vs. UPS, in which delivery driver Peggy Young filed suit against the package delivery company after it required her to go on unpaid maternity leave instead of providing her with light duty during her pregnancy. UPS said Young didn’t qualify for a program in which temporarily disabled employees were given light duty until they could resume their regular jobs.

Should the Supreme Court rule in favor of Young, “it may expand the definition of the Pregnancy Discrimination Act,” the 1978 law passed by Congress in response to an earlier Supreme Court ruling that employers who discriminated against pregnant employees were not guilty of sex discrimination, said Perez.

Although pregnancy itself is not considered a disability under the law, the EEOC’s guidelines recommend that employers treat pregnant employees whose condition limits their job abilities the same as other temporarily disabled employees, said Perez.

She recommended a set of best practices for HR to follow, chiefly that HR ensure that a company’s policies and practices related to hiring, promotion and pay do not disadvantage pregnant employees or those who plan to take or have taken maternity leave. And beware the “mommy track,” she said, referring to the practice of steering pregnant employees into less-prestigious, lower-paying jobs.

“That’s the stuff of which discrimination lawsuits are made,” said Perez.

State governments aren’t waiting on the Supreme Court or Congress to give increased protections to pregnant workers, said Jonathan Segal, a partner at Duane Morris in Philadelphia. At least nine states have passed laws that go further than the federal PDA in requiring companies to accommodate pregnant employees, he said, part of a trend in which states are taking a more activist role in workplace matters.

“There may be gridlock at the federal level, but at the state level we’re seeing a lot of action,” said Segal during the session “All Politics is Local: State Law Trends.”

Thirteen states so far (and at least 90 municipalities) have passed so-called “ban the box” laws that prohibit employers from asking job candidates on their initial application whether they’ve ever been convicted of something. Four states have passed laws specifically protecting interns from discrimination and harassment. Twenty one states have passed laws banning discrimination on the basis of sexual orientation, and 19 of those states also have laws banning gender-identity discrimination.

“With the 2016 election, you can expect to see more ballot initiatives pertaining to paid sick leave, raising the minimum wage, gender identity — more Democratic voters tend to participate in presidential elections than mid-term ones, and these issues resonate with them,” said Segal.

Conservative state lawmakers have also been active: Twenty-two states have passed laws protecting the right of employees to store guns in their cars while they’re at work. A new law proposed in Pennsylvania would even allow employees to store guns on the outside of their vehicles, said Segal. Meanwhile, the number of “right to work” states is at an all-time high of 26, having recently been joined by Wisconsin and Michigan.

All of this poses a special burden for multi-state employers, said Segal, who must comply with a patchwork of regulations across the country.

In some cases, he said, the best approach is to keep it simple. With respect to ban-the-box, it might make sense to simply remove the question from all job application forms, rather than having differing forms for different jurisdictions.

“Does it really make sense to have multiple forms for different states?” asked Segal. “This is an area where we’re certainly going to see more states adopt this rule. It’s one thing that actually attracts support from both Republicans and Democrats.”