Employment Law Checklist Project: The 11 Things You Should Know About Pregnant Employees

The laws regarding the protections owed to pregnant employees got far broader a few years back. In fact, the statutory provision prohibiting discrimination against pregnant employees has eleven key items. Rather than tackle them in separate posts, we’ll “super-size” this post to cover it all.

The main law is set forth at Conn. Gen. Stat. Sec. 46a-60(b)(7), though it is to be read in conjunction with the state’s broad anti-discrimination laws.

The key prohibitions state that it shall be a “discriminatory employment practice” for an employer (or the employer’s agent):

(A) To terminate a woman’s employment because of her pregnancy;

(B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;

(C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;

(D) to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so;

(E) to limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;

(F) to discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;

(G) to fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer;

(H) to deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;

(I) to force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related toCa her employment;

(J) to require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and

(K) to retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation;

Just like last week, that’s a lot of “don’ts” in just one small part of one big law! So let’s dig deeper into each of them to add to our checklist.

Scope:  Employers here are defined differently than the statute we just looked at last week. Here, it includes “the state and all political subdivisions thereof and means any person or employer with three or more persons in such person’s or employer’s employ” as defined in Conn. Gen. Stat. Sec. 46a-51.  So, employers with only one or two employees are excluded.

What is “Pregnancy” anyways? You have to look to another section, 46a-60(a)(1) to find out that “Pregnancy” means “pregnancy, childbirth or a related condition, including, but not limited to, lactation.”  It’s this last clause that should make employers understand that the protections for pregnancy don’t end at childbirth.

What’s Prohibited or Required? A lot.  The law says that employers: 1) Can’t fire employees because of pregnancy; 2) Can’t refuse to give an employee a reasonable leave of absence because of a pregnancy-related disability; 3) Can’t hold back benefits owed to pregnant employees who are out on disability leave; 4) Have to give an employee her job (or its equivalent) back unless circumstances have changed that it is “impossible” or “unreasonable” to do so; 5) Can’t hold back assignments or other limit opportunities to pregnant employees; 6) Can’t discriminate against pregnant employees or applicants on terms and conditions of employment; 7) Have to provide a “reasonable accommodation” to an pregnant employee or applicant, unless it’s an “undue hardship”; 8) Can’t deny opportunities to an employee who has requested a reasonable accommodation; 9) Can’t force an pregnant employee to take a reasonable accommodation if she doesn’t want it or need it; 10) Can’t require an employee to take a leave, when a reasonable accommodation would suffice; and 11) Can’t retaliate against an employee who has requested a reasonable accommodation.

Are the “Reasonable Accommodation” and “Undue Hardship” definitions the same as the ADA? No.  As used in this provision, “Reasonable accommodation” means things like: “being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”

“Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Private Right of Action or Other Penalty Allowed? Yes! An employee now has 300 days to file a claim with the Connecticut Commission on Human Rights and Opportunities.  Notably, claims of pregnancy discrimination must be filed at this state agency first before filing in court.

What May Be Recovered? It depends if the claim stays at the CHRO or ultimately gets pulled and filed in federal or state court.  But items like back pay, compensatory damages, punitive damages and attorneys’ fees are all likely to be sought.

Any Practical Steps Employers Can Take? Yes.  Connecticut’s protections for pregnant employees are broad, a fact I’ve covered in a prior post here.  If an employee does tell you she is pregnant, your first words should be “Congratulations!” and your second words should be “Let us know if you need anything.”  Beyond that, employers should train their managers and supervisors on how to respond.  Being flexible is really key under the broad “reasonable accommodation” umbrella.

Employers need to understand that Connecticut’s law differs from federal law and the ADA.  And “reasonable accommodation” and “undue hardship” in these contexts is entirely different from federal law.  While the words may be interchangeable, they mean different things.

Employers should update their policies and procedures to address these Connecticut requirements.

Any Other Interesting Information or Background? As I said earlier, the laws regarding pregnancy discrimination were modified a few years back to create broad protections for employees and obligations for employers.

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