What to Expect When Your Employee Is Expecting

The Pregnancy Discrimination Act (“PDA”) amended Title VII of the Civil Rights Act of 1964 to provide that the terms “because of sex” or “on the basis of sex” include, but are not limited to, “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. ' 2000e(k). The statute goes on to provide that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work ' .” Id.

Fundamentally, the PDA requires that employers treat pregnant employees like similarly situated non-pregnant employees. An employer may not refuse to hire an applicant because of her pregnancy or a pregnancy-related condition so long as the potential employee can perform the “major functions” of the position. 29 C.F.R. Pt. 1604 App. Nor can an employer refuse to hire an employee based on the pregnancy-related bias of its customers or employees. An employer also may not treat pregnancy-related conditions differently from the way it treats other health conditions. Employers also must provide health insurance that covers expenses for pregnancy-related conditions on the same basis as for other medical conditions. The PDA prohibits certain conduct ostensibly taken to protect pregnant women. For example, an employer may not force a pregnant woman to take medically unnecessary leave, and it may not prohibit her from returning to work after recovery from a temporarily disabling pregnancy-related condition. 29 C.F.R. Pt. 1604 App. Similarly, employers may not require that women wait a certain period of time after giving birth to return to work. Id.

The PDA protects men as well as women. The Supreme Court has held that the PDA prohibits discrimination against male employees in the provision of pregnancy-related benefits. Newport News Shipbuilding & Drydock Co. v. EEOC, 462 U.S. 669, 683-84, 103 S. Ct. 2622, 2630-32 (1983) (holding that the Act forbids discrimination in benefits to male employees' dependents). In addition, men have standing to sue for pregnancy discrimination based on the pregnancy of their partners. Nicol v. Imagematrix, Inc., 773 F. Supp. 802, 805 (E.D. Va. 1991) (holding that male employee had standing to sue under the PDA and Title VII for discrimination against him allegedly due to his wife's pregnancy).

The issue of whether the PDA also applies to individuals seeking infertility treatment remains unsettled. Compare Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008) (finding that the plaintiff stated a cognizable claim when she alleged discrimination in her termination for use of medical leave to receive infertility treatments) and Erickson v. Bd. of Governors, Ne. Ill. Univ., 911 F. Supp. 316, 320 (N.D. Ill. 1995) (finding that the plaintiff stated a claim for discrimination based on her “potential pregnancy” when she alleged discrimination in her termination for use of sick leave to receive infertility treatments) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir. 1996) (concluding that infertility did not fall within the PDA) and Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 771 (W.D. Mich. 2001) (concluding that infertility is not a medical condition related to pregnancy or childbirth within the meaning of the PDA).

The PDA is enforced as part of Title VII, and it is subject to the same administrative exhaustion requirements, the same burdens of proof, and has the same remedial provisions as Title VII. 42 U.S.C. ” 1981(a), 2000e-5. In addition, some claims under the PDA may be affected by the Lilly Ledbetter Fair Pay Act of 2009, which provides that if an employer makes a discriminatory pay determination, each paycheck impacted by the original discriminatory determination will count as a discriminatory act for the purposes of the statute of limitations under Title VII. Pub. L. No. 111-2, 123 Stat. 5 (2009). This could impact a PDA case if an employer previously made a discriminatory pay determination on the basis of an employee's pregnancy that has a lasting impact on an employee's compensation.

Family and Medical Leave Act

One of the most significant impacts on the landscape of pregnancy and employment is the Family and Medical Leave Act. See 29 U.S.C. ' 2601, et seq. Eligible employees, both male and female, are entitled to up to 12 weeks of unpaid leave to care for a newborn or newly adopted child during the first year of the child's life or placement for adoption. Id. at ' 2612(a)(1)(A) & (B). To be eligible, an employee must have been employed for at least 12 months (which need not be consecutive), have worked at least 1,250 hours during the preceding 12-month period, and must be employed at a worksite where 50 or more employees work within 75 miles of that worksite. Id. at ' 2611(2). The FMLA applies only to employers who have 50 or more employees. Id. at ' 2611(4).

Where both a husband and wife work for the same employer, the FMLA provides that they need only be permitted to take a total of 12 weeks of leave for the birth or placement of a child. 29 U.S.C. ' 2612(f). Each employee, however, must be able to use the remainder of the 12-week allotment for his or her own serious health condition or the serious health condition of his or her family member. Id.

FMLA leave also may be available for pregnancy-related conditions if they constitute a “serious health condition.” Id. at ' 2612(a)(1)(D). Upon the conclusion of the leave, employers generally are required to reinstate returning employees to the same position or to “an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. ' 2614(a).

Some employees might request “intermittent leave,” such as a part-time schedule, after the birth or adoption of a child. Although the FMLA requires that employees be permitted to take intermittent leave when medically necessary either to care for a sick family member or because of the employee's own serious health condition, it does not require that new parents be permitted to take intermittent leave. See 29 U.S.C. ' 2612(b)(1). However, the FMLA specifies that employees and employers may agree that FMLA leave may be taken on an intermittent basis for the birth or placement of a child. Id.

An employer must apply the same requirements for use of leave to all employees requesting FMLA leave, regardless of the reason for an employee's FMLA request. See Orr v. Albuquerque, 531 F.3d 1210, 1219 (2008) (reversing summary judgment for an employer because of a possible “pattern of treating pregnant women differently [from] other employees seeking FMLA leave.”). Employees may elect, and employers may require, that employees use any available accrued paid leave during their FMLA leave. 29 U.S.C. ' 2612(d)(2). Employers may not, however, require employees to take more leave than is required by their health condition. See 29 C.F.R. ' 825.204(e).

Pregnancy-related FMLA issues may arise where an employer least expects it. For example, the FMLA requires that parents be permitted leave to care for their adult son or daughter if that child is “incapable of self-care because of a mental or physical disability.” 29 U.S.C. ' 2611(12). When her daughter's pregnancy-related serious health condition made her unable to care for herself, a grandparent-to-be was entitled to assert her FMLA rights to leave. See, e.g., Navarro v. Pfizer, Inc., 261 F.3d 90, 93 (1st Cir. 2001) (rejecting the lower court decision that high blood pressure acquired in the 36th week of pregnancy would be too “short-term” to constitute a serious health condition).

As a practical matter, there are two other important aspects of the FMLA employers must consider. First, the FMLA essentially imposes strict liability on employers because it requires no particular intent on the part of the employer for it to be held liable for a violation of the statute. Even a well-meaning employer can be found liable under the FMLA where an administrative mistake or a good-faith error results in neglecting to provide an eligible employee with the required leave or failing to restore a returning employee to the same or equivalent position. That said, an employer that can prove that its action or omission was “in good faith” will not be liable for the liquidated damages afforded under the statute. 29 U.S.C. ' 2617. Second, the FMLA provides that plaintiffs “shall” be awarded reasonable attorneys' fees and costs in any successful suit. This is unlike most other civil rights laws that leave the award of attorneys' fees to the discretion of the trial judge. This attorneys' fees provision may limit the ability of employers to settle cases cost-effectively where there are minimal actual damages because plaintiffs' attorneys ' knowing that even the most sympathetic employer will be held liable even for an honest mistake and that they will be paid by the court ' have less of an incentive to settle their claims.

The Americans with Disabilities Act

In most pregnancies, the protections of the Americans with Disabilities Act, 42 U.S.C. ' 12101, et seq., do not come into play. (Of course, to the extent an employee with a qualifying disability becomes pregnant, the ADA would continue to apply.) Most federal courts have held that a normal pregnancy ' even with its attendant discomforts and limitations ' does not constitute a “disability” within the meaning of the Act. See, e.g., Richards v. City of Topeka, 173 F.3d 1247, 1251 (10th Cir. 1999); Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970, 975 (S.D. Iowa 2002) (collecting cases).

Where pregnancy is accompanied by severe, unusual, or long-term complications, however, a qualifying disability under the ADA might exist. See, e.g., Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 983-84 (N.D. Ill. 1998) (denying motion for summary judgment because plaintiff's severe back pain and stomach pain, which persisted for seven months, combined with premature labor, could constitute a disability under the ADA). In such cases, a pregnant employee would be entitled to the protections of the ADA, including the requirement that she be provided “reasonable accommodation.” See 42 U.S.C. ' 12112 (b)(5).

Even in situations where pregnancy-related complications fall short of qualifying as a disability under the ADA, employers must be aware that the protections of the ADA could be triggered if the employer nevertheless treats the employee as “disabled.” See 42 U.S.C. ' 12102(2)(C); Reilly v. Revlon, Inc., 620 F. Supp. 2d 524 (S.D.N.Y. 2009) (factual issue existed as to whether employer, who had indicated a belief that pregnant employee could not resume her position, regarded the employee as disabled under the ADA); but see Spees v. James Marine, Inc., 08-00073, 2009 WL 1097559, *13 (W.D. Ky. Apr. 22, 2009) (dismissing ADA “regarded as” claim where only alleged impairment was pregnancy, which is not recognized as a disability under the ADA). And, just as there is a division in the federal courts as to whether infertility garners PDA protection, there is a split in the federal courts as to whether it constitutes a disability under the ADA. See Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 767-770 (W.D. Mich. 2001) (denying summary judgment on ADA claim where Wal-Mart fired pharmacist after she failed to report to work for a day during which she received infertility treatments); but see Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240, 242 (E.D. La. 1995) (holding that infertility does not qualify as a disability under the ADA).

In early 2009, amendments to the ADA went into effect, which, among other things, were intended to shift the focus away from whether a plaintiff has a qualifying disability to whether there has been unlawful discrimination. See ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008). As a result, employers should be attentive to possible ADA claims relating to pregnancy until the courts have time to address the impact of the amendments on pregnancy-related claims. See Stusse v. Von Maur, Inc., 08-01088, 2009 WL 1789579, *3 (D. Minn. Jun. 23, 2009) (holding that disorders commonly suffered by pregnant women, such as pre-syncope, are not “extremely rare circumstances” to the extent necessary to be covered under the ADA); but see Spees, 2009 WL 1097559, at *12 (“The Sixth Circuit has yet to address the issue of whether pregnancy itself is a disability.”).

Although the ADA applies infrequently, employers must exercise care ' because mistakenly assuming that the ADA does not apply could prove costly. The ADA provides for the same remedies as under Title VII, which includes back pay, front pay, compensatory and punitive damages (subject to the applicable statutory caps), and courts may award attorneys' fees to prevailing plaintiffs. 42 U.S.C.
” 12117, 12205.

State Laws

Although the focus of these issues centers on the federal statutes discussed above, employers also must be aware of applicable state laws, which can impose significant obligations on employers above and beyond those set forth in federal law.

As one example, California enacted legislation requiring employers covered by Title VII to provide disabled pregnant employees with unpaid leave of up to four months. Cal. Gov't Code ' 12945(a). This statute was challenged by an employer that argued that it was preempted by Title VII. The Supreme Court rejected this challenge, finding that Title VII provided the “floor beneath,” but not the “ceiling above” pregnancy benefits. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-85, 107 S. Ct. 683, 691 (1987); see also Miller-Wohl Co. v. Comm'r of Labor & Indus., 214 Mont. 238, 261 (1984) (upholding the Montana Maternity Leave Act which, inter alia, requires “reasonable” maternity leave). However, at least one U.S. Circuit Court of Appeals has specified that such favorable benefits are permitted only for the period of physical disability due to pregnancy. See Schafer v. Bd. of Educ. of the School Dist. of Pittsburgh, Pa., 903 F.2d 243, 248 (3d Cir. 1990).

Similarly, the FMLA does not supersede any provision of state or local law that provides employees with greater benefits. 29 U.S.C. ' 2651(b). A number of states have enacted statutes with potentially more generous benefits, including California, which provides eligible employees with up to six weeks of leave with partial compensation (Cal. Gov't Code ' 12945.2); Connecticut, where covered employees are entitled to up to 16 weeks of unpaid leave for birth or adoption (Conn. Gen. Stat. ' 31-51cc-gg); the District of Columbia, where employers with more than 20 employees are required to allow eligible employees to take up to 16 weeks of family leave and 16 weeks of medical leave during a 24-month period (D.C. Code Ann. ' 32-501 et seq.); Minnesota, where employers employing at least 21 employees must grant up to six weeks of unpaid leave for birth or adoption (Minn. Stat. ” 181.940 through 181.944); and Rhode Island, where employers with at least 50 employees must provide up to 13 weeks of unpaid leave for birth or adoption (R.I. Gen. Laws ' 28-48-2).

Conclusion

In general, employers should strive to treat pregnant employees as they would any other employee with a temporary physical condition that may or may not impair her ability to work. Employers should not make decisions based on assumptions regarding the limitations of pregnancy or the desires of new parents to care for their children, and they should strive to keep open lines of communications with their expecting employees so all parties know what to expect both before and after the big day. As a practical matter, employers should consult with counsel and take a close look at their policies addressing pregnancy and parental leave as well as the more general disability leave policies to ensure compliance with governing federal, state, and local law.

Emily J. Glendinning, an associate in the Labor & Employment Group of Hogan & Hartson LLP, practices in the firm's Northern Virginia office. Gil A. Abramson, a member of this newsletter's Board of Editors, is a partner in the firm's Labor & Employment Group, practicing in the firm's Baltimore office.

For an employee, a pregnancy is an impending bundle of joy, but for an employer it can mean a host of new concerns and questions. Pregnancy discrimination complaints are steadily on the rise, necessitating a renewed focus by employers on ensuring compliance with pregnancy discrimination laws. No matter which half of the happy couple may be an employee (or, sometimes, both), every employer needs to be familiar with and take heed of federal and state laws governing the time from announcement to birth and thereafter.

This article provides a primer on the laws most likely to affect an employer's decision-making: 1) the Pregnancy Discrimination Act; 2) the Family and Medical Leave Act; 3) the Americans with Disabilities Act; and 4) related state laws.

The Pregnancy Discrimination Act

The Pregnancy Discrimination Act (“PDA”) amended Title VII of the Civil Rights Act of 1964 to provide that the terms “because of sex” or “on the basis of sex” include, but are not limited to, “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. ' 2000e(k). The statute goes on to provide that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work ' .” Id.

Fundamentally, the PDA requires that employers treat pregnant employees like similarly situated non-pregnant employees. An employer may not refuse to hire an applicant because of her pregnancy or a pregnancy-related condition so long as the potential employee can perform the “major functions” of the position. 29 C.F.R. Pt. 1604 App. Nor can an employer refuse to hire an employee based on the pregnancy-related bias of its customers or employees. An employer also may not treat pregnancy-related conditions differently from the way it treats other health conditions. Employers also must provide health insurance that covers expenses for pregnancy-related conditions on the same basis as for other medical conditions. The PDA prohibits certain conduct ostensibly taken to protect pregnant women. For example, an employer may not force a pregnant woman to take medically unnecessary leave, and it may not prohibit her from returning to work after recovery from a temporarily disabling pregnancy-related condition. 29 C.F.R. Pt. 1604 App. Similarly, employers may not require that women wait a certain period of time after giving birth to return to work. Id.

The PDA protects men as well as women. The Supreme Court has held that the PDA prohibits discrimination against male employees in the provision of pregnancy-related benefits. Newport News Shipbuilding & Drydock Co. v. EEOC , 462 U.S. 669, 683-84, 103 S. Ct. 2622, 2630-32 (1983) (holding that the Act forbids discrimination in benefits to male employees' dependents). In addition, men have standing to sue for pregnancy discrimination based on the pregnancy of their partners. Nicol v. Imagematrix, Inc. , 773 F. Supp. 802, 805 (E.D. Va. 1991) (holding that male employee had standing to sue under the PDA and Title VII for discrimination against him allegedly due to his wife's pregnancy).

The issue of whether the PDA also applies to individuals seeking infertility treatment remains unsettled. Compare Hall v. Nalco Co. , 534 F.3d 644 (7th Cir. 2008) (finding that the plaintiff stated a cognizable claim when she alleged discrimination in her termination for use of medical leave to receive infertility treatments) and Erickson v. Bd. of Governors , Ne. Ill. Univ., 911 F. Supp. 316, 320 (N.D. Ill. 1995) (finding that the plaintiff stated a claim for discrimination based on her “potential pregnancy” when she alleged discrimination in her termination for use of sick leave to receive infertility treatments) with Krauel v. Iowa Methodist Med. Ctr. , 95 F.3d 674, 679-80 (8th Cir. 1996) (concluding that infertility did not fall within the PDA) and Laporta v. Wal-Mart Stores, Inc. , 163 F. Supp. 2d 758, 771 (W.D. Mich. 2001) (concluding that infertility is not a medical condition related to pregnancy or childbirth within the meaning of the PDA).

The PDA is enforced as part of Title VII, and it is subject to the same administrative exhaustion requirements, the same burdens of proof, and has the same remedial provisions as Title VII. 42 U.S.C. ” 1981(a), 2000e-5. In addition, some claims under the PDA may be affected by the Lilly Ledbetter Fair Pay Act of 2009, which provides that if an employer makes a discriminatory pay determination, each paycheck impacted by the original discriminatory determination will count as a discriminatory act for the purposes of the statute of limitations under Title VII. Pub. L. No. 111-2, 123 Stat. 5 (2009). This could impact a PDA case if an employer previously made a discriminatory pay determination on the basis of an employee's pregnancy that has a lasting impact on an employee's compensation.

Family and Medical Leave Act

One of the most significant impacts on the landscape of pregnancy and employment is the Family and Medical Leave Act. See 29 U.S.C. ' 2601, et seq. Eligible employees, both male and female, are entitled to up to 12 weeks of unpaid leave to care for a newborn or newly adopted child during the first year of the child's life or placement for adoption. Id. at ' 2612(a)(1)(A) & (B). To be eligible, an employee must have been employed for at least 12 months (which need not be consecutive), have worked at least 1,250 hours during the preceding 12-month period, and must be employed at a worksite where 50 or more employees work within 75 miles of that worksite. Id. at ' 2611(2). The FMLA applies only to employers who have 50 or more employees. Id. at ' 2611(4).

Where both a husband and wife work for the same employer, the FMLA provides that they need only be permitted to take a total of 12 weeks of leave for the birth or placement of a child. 29 U.S.C. ' 2612(f). Each employee, however, must be able to use the remainder of the 12-week allotment for his or her own serious health condition or the serious health condition of his or her family member. Id.

FMLA leave also may be available for pregnancy-related conditions if they constitute a “serious health condition.” Id. at ' 2612(a)(1)(D). Upon the conclusion of the leave, employers generally are required to reinstate returning employees to the same position or to “an equivalent position, with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. ' 2614(a).

Some employees might request “intermittent leave,” such as a part-time schedule, after the birth or adoption of a child. Although the FMLA requires that employees be permitted to take intermittent leave when medically necessary either to care for a sick family member or because of the employee's own serious health condition, it does not require that new parents be permitted to take intermittent leave. See 29 U.S.C. ' 2612(b)(1). However, the FMLA specifies that employees and employers may agree that FMLA leave may be taken on an intermittent basis for the birth or placement of a child. Id.

An employer must apply the same requirements for use of leave to all employees requesting FMLA leave, regardless of the reason for an employee's FMLA request. See Orr v. Albuquerque , 531 F.3d 1210, 1219 (2008) (reversing summary judgment for an employer because of a possible “pattern of treating pregnant women differently [from] other employees seeking FMLA leave.”). Employees may elect, and employers may require, that employees use any available accrued paid leave during their FMLA leave. 29 U.S.C. ' 2612(d)(2). Employers may not, however, require employees to take more leave than is required by their health condition. See 29 C.F.R. ' 825.204(e).

Pregnancy-related FMLA issues may arise where an employer least expects it. For example, the FMLA requires that parents be permitted leave to care for their adult son or daughter if that child is “incapable of self-care because of a mental or physical disability.” 29 U.S.C. ' 2611(12). When her daughter's pregnancy-related serious health condition made her unable to care for herself, a grandparent-to-be was entitled to assert her FMLA rights to leave. See, e.g., Navarro v. Pfizer, Inc. , 261 F.3d 90, 93 (1st Cir. 2001) (rejecting the lower court decision that high blood pressure acquired in the 36th week of pregnancy would be too “short-term” to constitute a serious health condition).

As a practical matter, there are two other important aspects of the FMLA employers must consider. First, the FMLA essentially imposes strict liability on employers because it requires no particular intent on the part of the employer for it to be held liable for a violation of the statute. Even a well-meaning employer can be found liable under the FMLA where an administrative mistake or a good-faith error results in neglecting to provide an eligible employee with the required leave or failing to restore a returning employee to the same or equivalent position. That said, an employer that can prove that its action or omission was “in good faith” will not be liable for the liquidated damages afforded under the statute. 29 U.S.C. ' 2617. Second, the FMLA provides that plaintiffs “shall” be awarded reasonable attorneys' fees and costs in any successful suit. This is unlike most other civil rights laws that leave the award of attorneys' fees to the discretion of the trial judge. This attorneys' fees provision may limit the ability of employers to settle cases cost-effectively where there are minimal actual damages because plaintiffs' attorneys ' knowing that even the most sympathetic employer will be held liable even for an honest mistake and that they will be paid by the court ' have less of an incentive to settle their claims.

The Americans with Disabilities Act

In most pregnancies, the protections of the Americans with Disabilities Act, 42 U.S.C. ' 12101, et seq., do not come into play. (Of course, to the extent an employee with a qualifying disability becomes pregnant, the ADA would continue to apply.) Most federal courts have held that a normal pregnancy ' even with its attendant discomforts and limitations ' does not constitute a “disability” within the meaning of the Act. See, e.g., Richards v. City of Topeka , 173 F.3d 1247, 1251 (10th Cir. 1999); Gorman v. Wells Mfg. Corp. , 209 F. Supp. 2d 970, 975 (S.D. Iowa 2002) (collecting cases).

Where pregnancy is accompanied by severe, unusual, or long-term complications, however, a qualifying disability under the ADA might exist. See, e.g., Gabriel v. City of Chicago , 9 F. Supp. 2d 974, 983-84 (N.D. Ill. 1998) (denying motion for summary judgment because plaintiff's severe back pain and stomach pain, which persisted for seven months, combined with premature labor, could constitute a disability under the ADA). In such cases, a pregnant employee would be entitled to the protections of the ADA, including the requirement that she be provided “reasonable accommodation.” See 42 U.S.C. ' 12112 (b)(5).

Even in situations where pregnancy-related complications fall short of qualifying as a disability under the ADA, employers must be aware that the protections of the ADA could be triggered if the employer nevertheless treats the employee as “disabled.” See 42 U.S.C. ' 12102(2)(C); Reilly v. Revlon, Inc. , 620 F. Supp. 2d 524 (S.D.N.Y. 2009) (factual issue existed as to whether employer, who had indicated a belief that pregnant employee could not resume her position, regarded the employee as disabled under the ADA); but see Spees v. James Marine, Inc., 08-00073, 2009 WL 1097559, *13 (W.D. Ky. Apr. 22, 2009) (dismissing ADA “regarded as” claim where only alleged impairment was pregnancy, which is not recognized as a disability under the ADA). And, just as there is a division in the federal courts as to whether infertility garners PDA protection, there is a split in the federal courts as to whether it constitutes a disability under the ADA. See Laporta v. Wal-Mart Stores, Inc. , 163 F. Supp. 2d 758, 767-770 (W.D. Mich. 2001) (denying summary judgment on ADA claim where Wal-Mart fired pharmacist after she failed to report to work for a day during which she received infertility treatments); but see Zatarain v. WDSU-Television, Inc. , 881 F. Supp. 240, 242 (E.D. La. 1995) (holding that infertility does not qualify as a disability under the ADA).

In early 2009, amendments to the ADA went into effect, which, among other things, were intended to shift the focus away from whether a plaintiff has a qualifying disability to whether there has been unlawful discrimination. See ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008). As a result, employers should be attentive to possible ADA claims relating to pregnancy until the courts have time to address the impact of the amendments on pregnancy-related claims. See Stusse v. Von Maur, Inc., 08-01088, 2009 WL 1789579, *3 (D. Minn. Jun. 23, 2009) (holding that disorders commonly suffered by pregnant women, such as pre-syncope, are not “extremely rare circumstances” to the extent necessary to be covered under the ADA); but see Spees, 2009 WL 1097559, at *12 (“The Sixth Circuit has yet to address the issue of whether pregnancy itself is a disability.”).

Although the ADA applies infrequently, employers must exercise care ' because mistakenly assuming that the ADA does not apply could prove costly. The ADA provides for the same remedies as under Title VII, which includes back pay, front pay, compensatory and punitive damages (subject to the applicable statutory caps), and courts may award attorneys' fees to prevailing plaintiffs. 42 U.S.C.
” 12117, 12205.

State Laws

Although the focus of these issues centers on the federal statutes discussed above, employers also must be aware of applicable state laws, which can impose significant obligations on employers above and beyond those set forth in federal law.

As one example, California enacted legislation requiring employers covered by Title VII to provide disabled pregnant employees with unpaid leave of up to four months. Cal. Gov't Code ' 12945(a). This statute was challenged by an employer that argued that it was preempted by Title VII. The Supreme Court rejected this challenge, finding that Title VII provided the “floor beneath,” but not the “ceiling above” pregnancy benefits. Cal. Fed. Sav. & Loan Ass'n v. Guerra , 479 U.S. 272, 284-85, 107 S. Ct. 683, 691 (1987); see also Miller-Wohl Co. v. Comm'r of Labor & Indus. , 214 Mont. 238, 261 (1984) (upholding the Montana Maternity Leave Act which, inter alia , requires “reasonable” maternity leave). However, at least one U.S. Circuit Court of Appeals has specified that such favorable benefits are permitted only for the period of physical disability due to pregnancy. See Schafer v. Bd. of Educ. of the School Dist. of Pittsburgh, Pa. , 903 F.2d 243, 248 (3d Cir. 1990).

Similarly, the FMLA does not supersede any provision of state or local law that provides employees with greater benefits. 29 U.S.C. ' 2651(b). A number of states have enacted statutes with potentially more generous benefits, including California, which provides eligible employees with up to six weeks of leave with partial compensation (Cal. Gov't Code ' 12945.2); Connecticut, where covered employees are entitled to up to 16 weeks of unpaid leave for birth or adoption (Conn. Gen. Stat. ' 31-51cc-gg); the District of Columbia, where employers with more than 20 employees are required to allow eligible employees to take up to 16 weeks of family leave and 16 weeks of medical leave during a 24-month period (D.C. Code Ann. ' 32-501 et seq.); Minnesota, where employers employing at least 21 employees must grant up to six weeks of unpaid leave for birth or adoption (Minn. Stat. ” 181.940 through 181.944); and Rhode Island, where employers with at least 50 employees must provide up to 13 weeks of unpaid leave for birth or adoption (R.I. Gen. Laws ' 28-48-2).

Conclusion

In general, employers should strive to treat pregnant employees as they would any other employee with a temporary physical condition that may or may not impair her ability to work. Employers should not make decisions based on assumptions regarding the limitations of pregnancy or the desires of new parents to care for their children, and they should strive to keep open lines of communications with their expecting employees so all parties know what to expect both before and after the big day. As a practical matter, employers should consult with counsel and take a close look at their policies addressing pregnancy and parental leave as well as the more general disability leave policies to ensure compliance with governing federal, state, and local law.

Emily J. Glendinning, an associate in the Labor & Employment Group of Hogan & Hartson LLP, practices in the firm's Northern Virginia office. Gil A. Abramson, a member of this newsletter's Board of Editors, is a partner in the firm's Labor & Employment Group, practicing in the firm's Baltimore office.