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Pregnant Workers Fairness Act Final Rules: What Employers Need to Know

by Inoventive Solutions
May 14, 2024

The Equal Employment Opportunity Commission has published a Pregnant Workers Fairness Act final rule that will give new protections akin to disability accommodation under the Americans with Disabilities Act to pregnant workers and those who have recently given birth.

The rule, which takes effect June 18, will require employers to make reasonable accommodations for employees or applicants with known limitations related to pregnancy, childbirth or related medical conditions.

The new regulations apply to employers with 15 or more workers on their payroll. This is a significant new labor law and another source of potential lawsuits for employers.

Who is covered

Essentially, the Pregnant Workers Fairness Act (PWFA) requires employers to make reasonable accommodations for these workers if they ask for it, particularly if they are temporarily unable to perform one or more essential functions of their job due to issues related to their pregnancy or recent childbirth.

Reasonable is defined as not creating an undue hardship on the employer. Temporary is defined as lasting for a limited time, and a condition that may extend beyond “the near future.” With most pregnancies lasting 40 weeks, that time frame would be considered “the near future.”

What’s required

Like what is required by the ADA, if an employee asks for special accommodation due to a covered issue under the PWFA, the employer is required to enter into an interactive process with the worker to identify ways to accommodate her.

The law requires employers to accommodate job applicants’ and employees’ “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”

The condition does not need to meet the ADA’s definition of disability and the condition can be temporary, “modest, minor and/or episodic.”

The PWFA covers a wide range of issues beyond just a current pregnancy, including:

  • Past and potential pregnancies,
  • Lactation,
  • Contraception use,
  • Menstruation,
  • Infertility and fertility treatments,
  • Miscarriage,
  • Stillbirth, and
  • Abortion.

What’s a ‘reasonable accommodation’

The law’s definition of reasonable accommodation is similar to that of the ADA. The regulation lays out four “predictable assessments,” which would not be an undue hardship in “virtually all cases”. These would allow an employee to:

  • Carry or keep water nearby and drink, as needed;
  • Take additional restroom breaks, as needed;
  • Sit if the work requires standing, or stand if it requires sitting, as needed; and
  • Take breaks to eat and drink, as needed.

Employer rights

As mentioned, an employer may reject an accommodation if it would create an undue hardship, which is defined as a significant difficulty or expense.

Employers may ask for documentation under the PWFA if it is reasonable and the employer needs it to determine whether the employee or applicant has a covered condition and has asked for accommodation due to limitations the condition causes her.

If the worker is obviously pregnant, the employer may not require documentation.

The takeaway

Employers with 15 or more workers will need to add mentions of the new rule in their employee handbooks and train managers and supervisors about it, in order to keep from running afoul of the PWFA.

The ramping up period is short and it’s important that you have in place policies that require supervisors and managers to notify human resources if a worker asks for special accommodations.

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EEOC Proposes New Workplace Anti-Harassment Guidance

by Inoventive Solutions
December 26, 2023

The Equal Employment Opportunity Commission has issued proposed language to update its guidance on harassment in the workplace.

The proposed guidance “reflects notable changes in law, including the Supreme Court’s 2020 decision in Bostock vs. Clayton County (which held that LGBTQ individuals are protected from workplace discrimination under Title VII), the #MeToo movement and emerging issues, such as virtual or online harassment,” the EEOC wrote in its introduction to the proposed guidance.

The agency polices discrimination in American workplaces, and harassment falls under that banner. Between 2018 and 2022, 35% of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information.

Employers should read the guidance to understand the many forms of harassment — and in particular harassment against any LGBTQ workers, since they are the most recent group to receive protected status.

LGBTQ harassment

The Bostock ruling found that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination. According to the EEOC, guidance this type of harassment can manifest in the workplace via:

  • Physical assault;
  • Epithets regarding sexual orientation or gender identity;
  • The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
  • Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (which is known as “misgendering”); or
  • Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

The guidance provides examples that illustrate the many nuances of harassment.

In its guidance, the EEOC cites the following example of indirect LGBTQ harassment:

“Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians.

“Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him.  

“Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.”

It also offered this example of harassment based on gender identity from a case in Philadelphia:

“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.

“One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.”

“Coworkers have asked Jennifer questions about her sexual orientation … and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity.“

What you can do

The EEOC recommends that employers create an effective anti-harassment policy, which is widely disseminated, and that:

  • Defines what conduct is prohibited.
  • Requires that supervisors report harassment when they become aware of it.
  • Offers multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings).
  • Identifies accessible points of contact to report harassment (complete with contact information).
  • Explains the employer’s complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, at a minimum, it should provide:

  • For prompt and effective investigations and corrective action;
  • Adequate confidentiality protections; and
  • Adequate anti-retaliation protections.

The final step in it all is training your employees and supervisors on your anti-discrimination and harassment policy. You can use the EEOC guidance to provide examples of harassment and provide information about your employees’ rights if they experience workplace harassment.

Supervisors and managers should receive additional training, including the importance of taking complaints seriously and not retaliating against anyone who makes a complaint.

"Anti-discrimination"/
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EEOC Ramping Up Workplace Anti-Discrimination Efforts

by Inoventive Solutions
November 21, 2023

Employers should brace for increased enforcement by the U.S. Equal Employment Opportunity Commission after it received a budget boost and has a new board member, breaking a deadlock that’s been going on for nearly a year.

Here’s the latest EEOC news that’s pointing to more robust enforcement by the agency:

  • In the federal government’s fiscal year that ended on Sept. 30, 143 lawsuits were filed against employers for alleged discrimination against employees, 52% more than in 2022. All but three of them were filed in the last eight months of the year, indicating a rapid increase that’s spilling over into the current fiscal year.
  • The EEOC’s budget for 2024 increased $26 million, or 6%, from 2023.
  • The composition of the five-member EEOC changed in July, when a new commission member was finally confirmed after a year-long wait, giving Democrat-appointed members a majority. The commission had been deadlocked up until that point with two Republican-appointed members and two Democrat appointments.

These developments indicate that the EEOC will step up its enforcement of federal employment laws. Accordingly, employers should be extra-vigilant in preventing acts or conditions in the workplace that might appear to break the law.

The EEOC is a federal agency charged with enforcing federal laws that prohibit discrimination against job applicants and employees on several grounds. These include race, sex, color, religion, age and disability, among others.

In recent years, the number of lawsuits it filed has shrunk. During some years of the Obama administration, it filed more than 300 suits annually. That number fell to 97 in 2020 and was 124 in 2021.

An EEOC investigation can have several effects on an employer:

  • Time that would have been spent running the business must be dedicated to responding to the charges. Work activities are disrupted as the EEOC requests documents and interviews staff members.
  • Employee morale can tumble when staff find out the government is investigating alleged discriminatory practices.
  • It can tie up the employer for a very long time. The EEOC says most investigations take 10 months or so, but experts say that is an underestimate.

How to prevent an EEOC investigation

The best thing an employer can do is to avoid giving workers any reason to believe they’ve been victims of discrimination. You can do this by:

  • Establishing a strong and clear written anti-discrimination policy. It should expressly state that discrimination against any of the protected classes of employees is illegal and intolerable. You should include it in your employee handbook and communicate it often to workers. A good policy will include easy to understand examples of prohibited conduct.
  • Establishing an anti-retaliation policy. It should make clear that employees who complain of illegal discrimination against themselves or colleagues will not be retaliated against. EEOC statistics showed that most of the complaints it received in 2020 were for retaliation.
  • Training managers and other employees on compliance with applicable laws.
  • Developing and following a consistent process for addressing complaints.
  • Promptly investigating all complaints of discrimination and taking actions, if necessary.
  • Thoroughly documenting all steps in the investigation and retaining the records for future reference.
  • Using progressive discipline with violators, with the severity of the consequences increasing for each subsequent violation.

Insurance

Every employer should carry employment practices liability insurance. This coverage protects the business against claims of discrimination, harassment, retaliation and other wrongful workplace acts.

However, there can be great differences between policies, so it’s important that you work with us to find a policy that is right for your organization.

The EEOC is clearly taking employee discrimination claims more seriously. That makes it all the more important that your organization does the same.

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Retaliation Accounts for 35% of All EEOC Complaints

by Inoventive Solutions
October 24, 2023

The Equal Employment Opportunity Commission is seeing a wave of retaliation complaints by employees. Retaliation charges accounted for more than 35% of all charges filed with the commission in fiscal year 2022.

Retaliation means any adverse action that you or someone who works for you takes against an employee because they complained about harassment or discrimination. Any negative action that would deter a reasonable worker in the same situation from making a complaint qualifies as retaliation. 

Employees who participate in an investigation of any of these problems are also protected. For example, you cannot punish an employee for giving a statement to a government agency that is looking into a discrimination claim.

Employment law attorneys say that the increase is in part because employees who sue for retaliation have a higher degree of success than those who bring a regular discrimination charge. It’s important that all employers train their managers and supervisors to not retaliate against workers making complaints, as the result can be a costly lawsuit.

Thanks to a precedent-setting case, Burlington Northern & Santa Fe Railroad vs. White, while an employee alleging discrimination must prove that they suffered a “materially adverse employment action,” a retaliation plaintiff only needs to show that the employer undertook some action that may dissuade them from making or supporting a charge.

Employment law experts recommend that employers do the following:

Set clear and unambiguous policies

  1. Your company policy should clearly state that retaliation is not permitted.
  2. The policy should describe the parameters of inappropriate conduct as well as you can define them.
  3. Put the policy in writing.
  4. Set reporting and grievance procedures, including the person to whom the employee can report a retaliation complaint.
  5. Have staff sign an acknowledgment of receipt of your policy.

Investigate complaints promptly

  1. Remember that anyone who participates in an investigation is likely protected from retaliation (not just the employee who makes a complaint, but witnesses as well).
  2. Communicate results of the investigation to the grievant.
  3. Take effective remedial measures, including carefully reviewing all disciplinary measures before imposing them. You should also ensure that disciplinary actions are consistent with past practices.

Train managers and supervisors

Finally, you should train managers and supervisors and ensure they understand your policies.

Make sure they understand who is protected from retaliation (participants, complainants, and even persons related to the complainant in some cases).

They should also understand what constitutes retaliatory conduct and, if they are unsure, they should speak to your human resources manager.

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