Keeping Harassment Out of the Workplace
Workplace harassment is a sensitive issue for employees – and a potentially expensive one for employers. Without proper prevention and response, harassment can hurt your company’s morale, lower productivity and increase your risk of costly lawsuits.
Title VII of the Civil Rights Act of 1964 protects individuals against discrimination on the basis of sex, race, color, religion, national origin age and disability. It also prohibits harassment based on these protected characteristics.
Harassment includes all forms of physical or verbal conduct that show hostility toward another person. Some of the more common examples of physical harassment are unwelcome physical conduct, invading someone’s physical space, damaging someone’s property and making offensive gestures. Verbal harassment, on the other hand, involves unwelcome comments, jokes, epithets, threats and insults, name-calling, negative stereotyping, and possession or display of derogatory pictures or other graphic material. Harassment can happen in person, as well as via the phone, fax, email, social media, and any other form of communication or expression.
Generally, there is a difference between inappropriate conduct and illegal conduct. To be considered illegal harassment, the conduct must:
- Occur because of a person’s sex, race, color, religion, national origin age or disability
- Be unwelcome
- Be sufficiently severe or pervasive to interfere with an individual’s work performance or create an intimidating or offensive work environment
Regarding unwelcome conduct, it’s important to keep in mind that such a response can be communicated in many ways. For example, a person might grimace, frown, turn away, back up or even pretend not to notice the behavior. Some victims may choose to tell the harasser directly that the conduct is offensive, while others may go directly to management. Silence or retreat does not necessarily mean the conduct is welcome.
Title VII’s protections against sex-based discrimination also cover sexual harassment, a persistent problem in many workplaces. Sexual harassment can occur in two ways: hostile environment sexual harassment and quid pro quo sexual harassment. Hostile environment harassment covers a wide range of behaviors and situations. For example:
- Telling dirty jokes or using sexual innuendo in conversation
- Unwelcome touching such as hugs, pinching or patting
- Sexual propositions or repeated requests for dates
- Practical jokes of a sexual nature
- Demands or pressure for sexual favors
- Inappropriate compliments about one’s physical qualities or body
- Displaying or emailing sexually suggestive pictures or other graphic material
Quid pro quo (“this for that” in Latin) sexual harassment is more serious and easier to recognize. It occurs when a manager threatens or acts against an applicant or employee for not participating in a personal or sexual relationship, or when a manager offers or provides benefits (such as getting the job or a pay raise) to the applicant/employee for participating in a personal or sexual relationship. The harasser can be anyone in a position of authority who influences the terms and conditions of the employee’s job. The most blatant form of quid pro quo harassment is when a manager tells an employee he will fire the employee unless she sleeps with him, or promote her if she does. In some cases, the harassment can be more subtle. For example, a restaurant manager might tell a waitress that she’ll get bigger tips and maybe even a better bonus if she “loosens up and shows a little more cleavage.” Another supervisor might tell an employee that he may be able to get a nicer office if he “acts a little friendlier” to her. Although these examples may not seem like direct threats, the innuendo is still implied.
Harassment prevention and training
Education and a formal company policy are your best preventive measures against harassment in the workplace. Conduct regular training so your staff understands the different forms of harassment -- and the fact that your business will not tolerate such behavior. This goes for all employees, regardless of rank. Managers and supervisors should be trained separately regarding their obligations to prevent and respond to harassment. It’s also important to include an anti-harassment policy in your employee handbook, with a sign-off acknowledgment so you have documentation that every employee received and understands the policy. Some state laws require such policies and training.
Managers’ General Obligations with Workplace Harassment
Workplace harassment is nothing to take lightly, especially when it comes to the responsibilities of your managers and supervisors. Your managers need to understand that the company could be held liable for harassment committed by employees or non-employees if they knew (or “should have known,” based on the circumstances) about the harassment and didn’t take steps to correct it.
This means that managers must respond to all incidents of harassment – whether they observe the conduct first-hand, receive a complaint about it, hear a rumor about it or have other reasons to suspect it.
If you’re a manager or supervisor, here are your key responsibilities toward preventing and responding to harassment:
- Err on the side of caution. No matter how familiar you are with your colleagues, you never know what will offend them (plus, what offends them can change on any given day). It’s best to avoid the situation altogether by steering clear of any jokes or comments (emails included) that could possibly be considered discriminatory.
- Take all incidents/complaints seriously. Never let your personal opinions or emotions dictate how you respond to an incident or complaint of harassment. Remember that what one person might find humorous or harmless may be extremely offensive to another. Even if you think a complaint is frivolous or the person is overreacting, you must take the situation seriously.
- Respond/report even if no one has complained. If you see offensive graffiti in the restroom, or you observe inappropriate flirting among employees, you should report it to the appropriate person in the company – even if no one has complained or appears to be offended by the conduct.
- Respond/report even if the person does not follow proper reporting procedures. You should respond to all complaints of harassment, regardless of whether or not the person involved followed your company’s official reporting process. For example, you’d need to take the proper steps if an employee informed you of an incident rather than the company official designated to handle complaints. Similarly, a complaint should never be ignored because the victim refused to put the complaint in writing, failed to identify witnesses or otherwise overlooked any aspect of your company’s reporting procedures.
- Don’t delay. You should report all incidents or complaints of harassment immediately. If possible, address the situation on the same day in which you become aware of it.
- Be discreet. If you witness harassment or are told of a situation, you shouldn’t share information about it with anyone other than your designated company official, or, if necessary, members of upper management on a “need to know” basis.
- Don’t agree to keep it a secret. If a victim or other employee confides in you and asks you not to report the incident, explain to him or her that as a manager, you have no choice. Point out that your company has an obligation to investigate all incidents of harassment, and that it must take the proper corrective action to keep it from recurring. You may, however, tell the person that the matter will be kept as confidential as possible.
Remember: Your knowledge (as a manager) of the possible harassment makes the company responsible for stopping it. By failing to properly report the incident, you put your job at risk, in addition to exposing your company to serious liability by interfering with its ability to investigate and correct the harassment.
Your Harassment-Free Workplace Policy
The EEOC encourages employers to establish, post and enforce a no-harassment policy that includes clear instructions on how to file a complaint. At the same time, some states (such as California, Maine, Massachusetts, Rhode Island and Vermont) require employers to develop and distribute a written policy prohibiting sexual harassment.
To ensure your policy is communicated correctly, provide every employee and manager a copy of your no-harassment policy at the time of hire and at least once a year afterward. The EEOC also recommends distributing the policy randomly at meetings and training sessions, and posting anti-harassment messages in prominent locations throughout your workplace.
It’s smart to obtain a written acknowledgment from each employee whenever he or she receives a copy of the policy, and to file the acknowledgment in the employee’s personnel file as proof the policy was properly distributed. Harassment reporting procedures, in particular, should be communicated to employees through as many avenues as possible. Written policies, along with postings and employee training, are the most effective ways to do this.
Content of your no-harassment policy
First and foremost, your policy should clearly explain the types of conduct that are illegal. The policy should state that the company prohibits and will not tolerate harassment based on sex, race, color, religion, national origin, age, disability and/or any other legally protected status. (You may choose to prohibit harassment on the basis of other characteristics, such as sexual orientation, even if they aren’t protected by law.)
Your position against harassment should cover behavior committed by anyone in the workplace, including executives, managers, coworkers and non-employees. For clarification, include definitions and examples of harassment, emphasizing that the company has zero tolerance for all forms of harassment.
Your policy should also notify employees of your company’s complaint procedures. Keep in mind that to uphold the U.S. Supreme Court’s defenses for avoiding liability, you should encourage complaints in your no-harassment policy and remove all potential obstacles from the reporting process.
Specifically, your policy should state that:
- Employees have a duty to immediately report all forms of perceived harassment to management, regardless of whether the harassment came from a manager, executive, coworker, customer, vendor or anyone else with whom the employee had conduct during employment with your company.
- There are multiple ways to report harassment. As such, list several company managers to whom complaints may be directed. Include names and telephone numbers. To ensure impartiality and encourage reporting, designate at least one supervisor outside an employee’s direct chain of command. You’ll also want to designate at least one male and one female to allow for open discussion of sensitive subjects.
- All complaints will be taken seriously and investigated promptly, thoroughly and impartially. If you have an investigation procedure, explain it clearly so your employees know what to expect.
- Complaints will be treated confidentially as much as possible. You don’t want to guarantee an employee’s complete confidentiality, however. During an investigation, you may have to reveal certain information to the harasser, witnesses and members of management.
- The company will take the appropriate corrective action, up to and including discipline and termination of employment.
- Employees will not be subject to retaliation for reporting a complaint or participating in an investigation. The policy must contain this assurance; otherwise, employees will not feel secure issuing a complaint, and the complaint procedure will be ineffective.
- Any manager who engages in harassment, condones such behavior, neglects to prevent, stop or report such behavior, or retaliates against a person for reporting harassment or participating in a harassment investigation is subject to disciplinary action up to and including termination.
Prevent Harassment with Effective Workplace Training
Now, more than ever, businesses need to put harassment prevention front and center. What about you? Are you doing enough to stop the comments, gestures and attitudes that could expose your workplace to a costly and time-consuming lawsuit?
Perhaps it’s time to update your training approach, which is probably the single most effective way to prevent harassment.
Rather than treat training as one more item on your ‘to do’ list, strive to give your staff relevant, insightful information that will make an impact and, most important, lead to a more harmonious, productive and risk-free workplace.
Start with a no-harassment policy
First, you should develop and distribute a written no-harassment policy that clearly explains the types of conduct that are prohibited. The policy should state that the company will not tolerate harassment based on sex, race, color, religion, national origin, age, disability or any other legally protected status. (You may choose to prohibit harassment on the basis of sexual orientation and/or gender identity, too, even if they are not protected by law in your city or state.)
For the most comprehensive approach possible, your policy should address harassment committed by anyone in the workplace, including executives, managers, coworkers and non-employees (such as vendors and clients). Include definitions and examples of harassment, an overview of employee rights in the workplace and a strong message that the company has zero tolerance for all forms of workplace harassment. It’s also important to outline your reporting procedures (with multiple options) so employees know what steps to take when they’ve witnessed harassment or feel they are the victim of it, and to include an anti-retaliation statement.
Make sure your training is top-notch
Let’s face it: Most harassment training programs are downright corny, where the information is more comical than it is enlightening. So what can you do to engage your employees with meaningful material and underscore the importance of preventing harassment in the workplace?
Here are a few tips:
- Find something that speaks to your employees. If need be, review a series of harassment videos and programs that you feel best match your corporate culture. Target your employee demographic with important and appropriate information that they can relate to and incorporate in their day-to-day work lives. Keep in mind, too, that some programs can be customized to fit your company’s needs even further.
- Be interactive. Keep your employees engaged in the material and the outcome of the training session. Ask questions and organize activities to make the training fast-paced and memorable. Going through the motions like a tired school teacher is not only boring to the participants, but also highly ineffective.
- Refresh your material. Find a DVD or program that is fresh, current and fits the time period. Outdated clothing, situations and conversation (think teal pantsuits, a wood-paneled break room or expressions like “You look rad in that dress”) can be distracting and take away from the overall message. Also, make sure to update the material often enough so that employees are constantly being stimulated.
- Become an outlet. Reassure employees they have you or another designated individual to turn to for future questions, further training or issues regarding harassment in the workplace. Some may feel more comfortable addressing a problem or concern in private rather than in front of the entire training group.
- Separate employee and management training. As an employer, you’re responsible for a manager’s actions when it comes to workplace harassment. Train all supervisors and managers (including high-ranking company officials) on all aspects of your no-harassment policy, paying special attention to the topic of quid pro quo harassment and retaliation. Emphasize that every manager has a duty to prevent and respond to harassment on behalf of the company.
- Track your training. You’ll want to keep well-written records of every training session you hold. Ask employees to sign a log and then take attendance to ensure everyone is present. Keep files and data handy for easy reference and additional training when necessary. Remember: Documentation is the key to protecting your company should any problems arise down the road.
Steps to Take if You Receive a Complaint
In short, you must take all complaints seriously and respond quickly. Your company most likely has established procedures for dealing with claims of harassment. These include designating contacts for handling charges, initiating investigative and disciplinary procedures, treating victims with sensitivity, and more. Follow these procedures to the letter when faced with a charge of harassment.
Unless company policy states otherwise, if you receive a complaint of harassment from an employee you should:
- Listen to the details of the complaint and let the employee know that you take his/her concerns seriously.
- Tell the employee that retaliation against any person for reporting or providing information on potential harassment is prohibited and will not be tolerated.
- Take immediate remedial action, if necessary.
- Tell the employee that you will promptly report his/her concerns to appropriate company officials and that someone will be following up with him/her.
- Inform the employee that you will keep the complaint as confidential as possible, but that it must be investigated.
- Report the conduct immediately to the company official(s) designated to receive harassment complaints as set forth in your company’s no-harassment policy.
- If the harasser is one of the people designated by your company to receive harassment complaints, report the harassment to another company official, to any member of your HR department, or to the President of your company.
- Prepare a written report outlining the details of the complaint as it was presented to you, and submit it to the company official designated to handle harassment complaints.
- Do what you can to make sure the harassment STOPS!
- Do not gossip or discuss the matter with other employees.
The bottom line: Do not participate in or allow harassment. Most important, if you become aware of potential harassment, do not ignore it. As a manager or supervisor, it is your obligation to respond and report any form of suspected harassment immediately, even if the alleged victim has asked you not to report it, the allegations do not seem serious to you, or you have doubts concerning credibility or motive.
It is not for you to judge the merits of the complaint. Leave it to the person investigating to make that determination. And remember, no one needs to put a complaint in writing or follow other formal complaint procedures for these obligations to be triggered.
How to Avoid Retaliation Claims
Federal anti-discrimination laws prohibit you from retaliating against applicants or employees for engaging in “protected activity.” Protected activity is defined as: filing a complaint or charge of harassment or discrimination (internally or with a government agency), or testifying, assisting, participating, or cooperating in any manner in an investigation, proceeding, or hearing in connection with a claim of harassment or discrimination.
Retaliation is illegal, regardless of the merit or validity of the employee’s underlying complaint. As such, an employee who makes a complaint that has no merit can still sue you if he or she is subjected to retaliation for making the complaint.
Examples of retaliatory acts include:
- Refusal to hire or rehire
- Denial of promotion
- Transfer to less desirable position
- Negative job evaluation or performance review
- Unwarranted disciplinary action, counseling or reprimands
- Over-scrutinizing performance or conduct
- Subjecting the employee to stricter rules or standards than those applied to other employees
- Excluding the employee from meetings or events
- Moving the employee to a less desirable office space
- Any other negative personnel action or adverse treatment affecting the employee’s working conditions
Employees are also protected from retaliation after their employment ends. The U.S. Supreme Court has held that it is unlawful to give a former employee a negative job reference, or to withhold giving a job reference, based upon that employee’s engagement in protected activity.
Similarly, the Court held that it is unlawful to inform an employee’s prospective new employer of the fact that the employee engaged in protected activity while employed with your organization. It is also unlawful to reject an applicant because he or she engaged in protected activity in a previous job (e.g., accused prior boss of sexual harassment).
Your company can steer clear of a retaliation claim with the following advice:
- Deny your accuser of any career or growth opportunities you’d otherwise consider him or her for, such as attending a seminar or convention, or receiving a pay raise or promotion.
- Treat your accuser scornfully. As difficult as it may be, all affected employees and managers must behave respectfully and get on with business in a normal and professional manner.
- Challenge your accuser or question him or her about the complaint. Any confrontation you have about the incident may hurt you.
- Vent about what happened in the workplace. If you need to discuss the issue, choose a confidante that the employee does not know outside your place of business.
- Be constructive. If a manager is involved in the harassment claim, he or she needs to calmly provide whatever information, documentation and time is requested. Not doing so could constitute a separate disciplinary offense (failure to cooperate in a company investigation), and could hurt your company’s position if it becomes a legal claim.
- Apologize. After the investigation is complete, the appropriate manager should apologize to the employee for the misunderstanding or behavior, whatever the circumstances. It makes for a more comfortable working environment going forward.
While it is imperative that you don’t retaliate against an employee for either cooperating in an investigation or filing a complaint, you don’t need to treat the employee with “kid gloves” either. Here is what he or she is entitled to:
- Coming to work each day free from threats, harassment or any other mistreatment based on participation in a protected activity
- Treatment by management that is exactly the same as if he or she had not filed charges or participated in the investigation. This should, of course, be equal to the respectful and professional treatment other colleagues receive. Performance issues and rule violations should be addressed and documented in the same manner as with any other employee.
Retaliation claims are not limited to harassment/discrimination laws. Employees are protected from retaliation for cooperating in an investigation or reporting a claim under most employment laws, from the Fair Labor Standards Act (FLSA) to the Occupational Safety and Health Act. It is also illegal to retaliate against someone for filing a workers’ compensation claim, affiliating with a union, “whistleblowing,” performing military obligations or asserting rights under the Family and Medical Leave Act.
Accommodating Disabilities Under the Americans with Disabilities Act (ADA)
Just as the number of older and foreign-born workers continues to rise among U.S. businesses, so does the number of disabled workers. Enacted in 1990, the Americans with Disabilities Act of 1990 (ADA) makes it unlawful for employers with 15 or more employees to discriminate against a qualified individual with a disability. The ADA also bars discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications.
The ADA, which the EEOC enforces, covers a wide range of employment practices, including:
- Job assignments
Under the ADA, a person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity, such as hearing, seeing, speaking, breathing, walking, caring for oneself, learning or handling manual tasks.
To be protected by the ADA, an individual with a disability also must be qualified to perform the essential functions of the job with or without reasonable accommodation. This means the applicant or employee must:
- Meet your job requirements for educational background, experience, skills, licenses and other qualifications
- Be able to perform the tasks that are essential to the job, with or without reasonable accommodation
A reasonable accommodation is any change or adjustment to a job or work environment that allows a qualified applicant or employee with a disability to apply for a job, to perform the essential functions of a job and /or to enjoy the same benefits and privileges of the job as employees without disabilities.
You are not required to provide an accommodation that would cause your business an "undue hardship." Undue hardships usually occur when an accommodation would cost too much (based on the company's resources) or would substantially interfere with business operations. This is a legal determination that must be made on a case-by-case basis by your company’s HR department and/or legal counsel.
Keep in mind: The ADA does not interfere with your right to hire the best-qualified applicant. Rather, it prohibits you from discriminating against a qualified applicant or employee because of a disability.
Expanded Protection Under the Amended Americans with Disabilities Act
When the Americans with Disabilities Act Amendments Act (ADAAA) went into effect in January 2009, so did a broader definition of disability, or an “impairment that substantially limits one or more major life activities.” Interpreting this expanded definition has created confusion for many employers and HR professionals. Is the definition really as all-encompassing as it seems? Can you expect more accommodation requests from applicants and employees as a result? And most importantly, what steps can you take to avoid disability-related claims?
As with any federal employment law that affects your business, education is your main line of defense against costly legal claims. What follows are some basic guidelines on what changed under the ADAAA – and how you can stay in compliance.
Closer look at disabilities under the amended law
Among other things, the ADAAA reverses several U.S. Supreme Court rulings that had narrowed the definition of disability and what is a major life activity. The language of the ADAAA provides more sweeping protection for employees, while directing courts to interpret the definition of disability in favor of individual coverage.
Under the ADAAA, an impairment is a disability if it substantially limits a major life activity as compared to most people in the general population. As such, major life activities are those that an average person can perform with little or no difficulty, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major life activities also include the operation of primary bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
Keep in mind that disabilities recognized by the ADA may be mental or physical – from alcoholism, asthma and attention deficit disorders to paralysis, psychiatric disorders and speech impairments.
In another change, employers must ignore mitigating measures when determining the existence of a qualifying disability. This includes:
- Medication; medical supplies, equipment or appliances; low-vision devices; prosthetics (including limbs and devices); hearing aids, cochlear implants and other implantable hearing devices; mobility devices; and oxygen therapy equipment and supplies
- Use of assistive technology
- Reasonable accommodations or auxiliary aids or services (such as qualified interpreters or readers)
- Learned behavioral or adaptive neurological modifications
In other words, if an employee’s condition would be considered a disability without such aids, you must treat it as a protected disability. (The only exceptions to the rule are eyeglasses and contact lenses. A person whose vision is 20/20 with ordinary glasses cannot make an ADA claim based on vision impairment.)
Putting the law in perspective
While it’s easy to conclude that nearly every applicant or employee is disabled under the expanded definition, keep in mind that disability alone does not guarantee protection for an individual. The ADA specifically prohibits employment discrimination against qualified individuals with disabilities. To be considered qualified, the individual must possess the skills, experience, education and other job-related requirements of the position.
In addition, to be qualified, the applicant or employee must be able to perform the job’s essential functions, with or without reasonable accommodation. Essential functions are usually considered to be tasks that are so central to the position that they cannot be eliminated without fundamentally changing the job.
How to Protect Your Business from a Disability Claim
With a broader definition of what constitutes a disability under the ADAAA, protections apply to a lot more people than they originally did. To stay in compliance and out of court, you should:
- Assume all employee impairments fall under the ADA.
- When an employee claims to have an impairment, err on the side of caution that it qualifies as a disability. You’re safer making this assumption in the beginning, than trying to argue your case later.
- Plan to accommodate employee impairments.
- After a claim is made, make all reasonable attempts to accommodate the impairment unless it creates “undue hardship” (so burdensome or expensive that it changes the nature of the business).
- Review and edit job descriptions.
- Since your defense against an ADA claim often rests with whether the disabled employee was qualified to perform the essential functions of the job, be sure to have on file accurate and detailed job descriptions that clearly define these essential functions.
- Conduct ADAAA training.
- Everyone involved in the hiring process, including HR professionals and managers, should participate in targeted ADA training to learn the changes.
- Revisit your company’s policies and update them, if necessary.
- If you haven’t done so already, scrutinize your written policies regarding disabled applicants and employees to verify that the language is in line with the latest ADA changes.
- Be flexible.
- Be prepared to modify your policies and procedures as the courts interpret the law. Like the original law, the impact of this legislation will evolve over time. Keep abreast of court rulings to ensure your business remains protected.
- Document each and every potential disability claim.
- It’s a good idea to jot down when employees call in or leave early because of illness, fatigue or injury. Keep track of complaints that someone can't do their job properly because they're too tired, the print is too small or the chair is uncomfortable. Then write down what you, or someone else in the company, did to fix the problem. That written record of complaints - and what you did to make things better - may be the key to winning an ADA claim.
Know Your Obligation to Accommodate Disabled Applicants and Employees
The ADA protects disabled employees and job candidates from discrimination when they can perform the essential tasks of a job with or without a reasonable accommodation. An accommodation, basically, is something that helps them do the work. For example, it might be a telephone amplification device for someone who is hearing impaired, or a ground-floor office for an amputee who would otherwise work on the fourth floor.
You are not required to provide an accommodation that would cause your company an “undue hardship.”
Undue hardships usually occur when an accommodation would cost too much (based on your resources) or substantially interfere with your business operations. This determination must be made on a case-by-case basis. In most situations, you can provide an accommodation without undue expense or hardship.
As an employer, you’re entitled to get information from an employee’s doctor to help make this determination (and to substantiate whether a “disability” exists). Managers should leave these types of communications to HR, if possible, to avoid infringing on an employee’s privacy rights. However, if an employee asks for an accommodation, his or her manager should create an open dialogue with the employee about the type of accommodation needed to help him or her perform the job. That way, your company can properly review the request and determine whether it is even necessary to seek further medical clarification.
All requests for accommodation should be taken seriously. Never deny an employee’s request for accommodation on the basis of “undue hardship” (no matter how unreasonable it seems to you) without exploring every angle. Similarly, an employee does not have to mention the “ADA” to trigger your obligation to accommodate. It is the manager’s responsibility to recognize when a request may be covered by the ADA and to properly consider all reasonable options before denying it.
To stay on the right side of the law, follow these Dos and Don’ts:
- Lose sight of what a reasonable accommodation is. Most cost nothing or very little. As the name suggests, they are reasonable, like voice-recognition software for someone with carpal tunnel syndrome, a stepladder for someone who needs to reach high, or a parking space near the entrance for someone with mobility problems.
- Ever discuss an employee’s disability with another employee or manager unless it’s a “need to know” situation.
- Apply the same performance standards to a disabled employee as you do to everyone else. Disabled workers must do their jobs adequately (with the reasonable accommodation provided) or they are subject to the same consequences as others.
- Be aware that there are countless disabilities that you can’t see, mental and physical. Watch your words and your jokes; you don’t know as much about a colleague as you think you do. It’s inappropriate to make reference to a person’s disability – either casually or in jest.
Pregnancy Rights in the Workplace
Pregnant women, who make up approximately 5 percent of the workforce in any given year, are entitled to certain rights and protections. Most notably, the Pregnancy Discrimination Act (PDA) prohibits you from discriminating against workers on the basis of pregnancy, childbirth or related medical conditions. An amendment to Title VII of the Civil Rights Act, the law applies to employers with 15 or more employees, as well as employment agencies, labor organizations and the federal government.
Under the PDA, you must treat pregnant women the same as other applicants or employees with similar abilities or limitations.
Specifically, the pregnancy-related protections include:
- You may not refuse to hire a woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of coworkers, clients or customers.
- Ability to work
- Pregnant employees must be permitted to work as long as they can perform their job. If an employee is temporarily unable to fulfill her job duties due to pregnancy, you must treat her the same as any other temporarily disabled employee regarding reasonable accommodations, requests for medical documentation and other requirements.
- Time off
- You must hold open a job for a pregnancy-related absence the same length of time as jobs for employees on sick or disability leave. For example, if your company’s leave policy allows 12 weeks for sick/disability leave, you must also allow 12 weeks of leave to women for pregnancy-related conditions.
- Fringe benefits
- If you grant any benefits to employees on leave, you must provide the same benefits for those on leave for pregnancy-related conditions.
Further, you must treat employees with pregnancy-related disabilities the same as other temporarily disabled employees with regard to accruing and crediting seniority, calculating vacation, increasing pay and providing temporary disability benefits.
Keep in mind, too, that pregnant employees have additional rights under the FMLA, ADA and ACA, which are addressed in other areas of this site.
Reasonable Accommodations for Pregnant Women
While discrimination prevention is an important aspect of the PDA, it sometimes falls short in the practical protections it provides – most notably, reasonable accommodations for pregnant women.
A study conducted by the National Partnership for Women & Families found that nearly two-thirds of women aged 18-45 who had given birth between July 2011 and June 2012 experienced the following obstacles to working effectively and managing their health during their pregnancies:
- 71 percent needed more frequent breaks
- 61 percent needed adjustments to their schedules to get medical care
- 50 percent needed a change in duties, such as less heavy lifting or more chances to sit
- 40 percent needed some other type of workplace adjustment
The number of pregnancy-related claims filed with the EEOC has grown by almost 50 percent in the past decade. The issue has become so pervasive, in fact, that the EEOC recently took on the issues of pregnancy discrimination and the need for workplace accommodations. According to new guidance released by the EEOC on July 2014, pregnancy alone – even without other medical conditions – may demand accommodations.
Specifically, the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues instructs employers to treat pregnant employees the same as non-pregnant employees “who are similar in their ability or inability to work.” For example, if you have a policy to provide temporary light duty work to an employee suffering back strain (even though it’s not necessarily a disability), you should extend the same accommodation to a pregnant employee. The EEOC even clarified that light duty programs that only benefit workers injured on the job violates the PDA.
As a result of this increased legislative activity surrounding pregnancy protections, you should carefully consider all reasonable requests for accommodations. Depending on the specifics of your workplace and the employee’s position, this may include:
- More frequent restroom and water-drinking breaks
- Periodic rest for jobs requiring long bouts of standing
- Assistance with manual labor
- Job restructuring or modified work schedules
- Temporary transfers to less strenuous or hazardous work
Be especially mindful of the “temporary disability” distinction. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, you must treat her the same way as any other temporarily disabled employee.
The ADA can come into play with pregnancy-related issues, as well. For example, complications like gestational diabetes or preeclampsia may be considered disabilities under the ADA. As such, you’re obligated to comply with the ADA by providing a reasonable accommodation unless it presents an undue hardship for your business. One final note: The ADAAA greatly expands the definition of a disability, making it even easier for an employee to show that a pregnancy-related medical condition is a covered disability. You seek the advice of counsel before denying an accommodation to a pregnant employee or to an employee presenting with a disability.
Federally Required Break Time for Nursing Moms
Due to an amendment to section 7 of the Fair labor Standards Act (FLSA) under the Affordable Care Act (ACA), you’re required to provide reasonable break time for a non-exempt employee to express breast milk for her nursing child for one year after the child’s birth. In addition to the time to express milk, you must offer a place, other than the bathroom, to do this – shielded from view and free from interruptions from coworkers and the public.
What the law covers
- The federal break time requirement became effective when the ACA was signed into law in March 2010
- The requirement applies to employers covered by the FLSA who are not exempt from section 7, which pertains to overtime pay provisions
- Only if you have fewer than 50 employees can you challenge compliance on the basis of “undue hardship”
- Even if you’re exempt from the FLSA and state laws, the Department of Labor encourages employers to do everything possible to provide breaks for nursing mothers
- If your state law provides greater allowances for nursing moms than the federal law, you must honor them, including break time for salaried (vs. hourly only) employees or break time past the one-year birthday of the employee’s child
About the time needed to express milk
- Be aware that the frequency of the breaks for lactation, as well as the duration of each break, will vary (a half hour for every four hours worked is an average)
- Break time doesn’t have to be paid under the FLSA, unless the employee is using already paid meal or break time specifically to express milk
- The employee must be completely relieved from work tasks during the break
About the space to express milk
- You don’t need to create a permanent, dedicated room; a temporary or converted space is okay, as long it’s functional, private and free from intrusion from coworkers and the public
- Also, the space should be as close to the employee’s work area as possible
- If you don’t have any employees who need to express milk, you don’t need to provide a lactation space
- Even if space is limited, you can’t designate a bathroom for this purpose