Obviously employers cannot lawfully discriminate against an employee because of her pregnancy. But employers must also provide reasonable accommodation for a pregnant employee if/when the need arises. And therein lies an area ripe for dispute, disagreement, and litigation.
There are some things employers can do to minimize their liability and reduce the chance of facing litigation. Most importantly, employers should reasonably and actively engage the employee in the interactive process of discussing the need for accommodation and the type of accommodation required. Oftentimes, litigation follows when the employer does not reasonably engage in the discussion and/or is the cause of discussions breaking down. The employer’s response should not be to immediately place the employee on a leave of absence or, worse still, terminate the employee. Instead, discuss the issues requiring an accommodation and explore the type of accommodations that might be suitable. Engaging in interactive discussions with the employee in an effort to find a suitable accommodation goes a long way toward reducing exposure to liability.
And employers should be practical and reasonable in developing accommodations. If, for example, the employer has a policy or program in place for employees with a disability, with work restriction, and/or who are pregnant (e.g., light duty, telecommuting), it may make sense to modify or expand that program for an employee who requires accommodation beyond the strict terms of the existing program.
Employers should take heed. In its Strategic Plan, the EEOC identified enforcement action against employers who fail to reasonably accommodate pregnant employees as an emerging issue on which it will focus. And in July of 2014, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm), which reinforces the notion that enforcement action against employers who fail to properly treat pregnant employees is a high priority for the agency.