August 7, 2017

CT expands anti-discrimination protections for pregnant employees

PHOTO | Contributed
PHOTO | Contributed
Attorney Miguel Escalera

Q&A talks with attorney Miguel Escalera, of Hartford law firm Kainen, Escalera & McHale, about a new state law that expands pregnancy anti-discrimination protections.

Q: State lawmakers recently passed a law expanding employment protections provided to pregnant women under the state's anti-discrimination law. What does the new law entail?

A: This new law represents a simple strengthening of an existing statute. Among the more significant new provisions, it is now also unlawful:

• 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 the accommodation would impose an undue hardship;

• To force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if the employee or person seeking employment does not have a known limitation related to her pregnancy, or does not require a reasonable accommodation to perform the essential duties related to her employment; and

• To require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave.

Q: The Connecticut Business and Industry Association submitted testimony arguing that both state and federal law (prior to this bill passing) already provided pregnant women protection from discrimination. Is the new law going to be an onerous mandate for employers? How does it differ from current state and federal law?

A: In addition to adding some new provisions as stated above, a few older provisions of the state law have been deleted, including the provisions requiring employers to inform employees that they must give written notice of a pregnancy in order to be eligible for transfer to a temporary position, and the provision requiring the employer to transfer a pregnant employee to any suitable temporary position that may be available.

The protections that a pregnant woman enjoys under federal law remains unaffected by the strengthening of the state law, and do not materially differ from those contained in the revised state law. However, under federal law, it still remains unlawful for an employer to, among other things, single out pregnancy-related conditions for special procedures to determine an employee's ability to work or treat a pregnant employee differently than any other temporarily disabled employee. Also employers must allow pregnant employees to work as long as they are able to perform their jobs.

Q. The new law requires employers to make "reasonable accommodations" for pregnant women. What are "reasonable accommodations?"

A: In the House bill, "reasonable accommodation" means, "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."

Q: How often are employers targets of discrimination lawsuits from pregnant employees?

A: Employers in Connecticut remain subject to lawsuits by employees for multiple reasons, and pregnancy discrimination lawsuits continue to be a significant component of such lawsuits, particularly in conjunction with claims asserted in connection with interference for exercising the right to take family and medical leave or being retaliated against for taking family and medical leave under the state or federal family and medical leave laws.

The most common complaint in a pregnancy discrimination lawsuit is that an employer has terminated an employee near the time the employee gave notice that she is pregnant. While pregnancy discrimination lawsuits have remained steadily problematic for employers over recent years, we anticipate that the additional "reasonable accommodation" burdens now imposed under state law may lead to an uptick in complaints in the months ahead.

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