by Patrick D. Smith, Attorney with the law firm of Bradshaw, Fowler, Proctor & Fairgrave, P.C.
How to best accommodate pregnant employees is a frequent challenge Iowa employers face. Pregnant employees may be entitled to protection under the laws prohibiting discrimination on the basis of pregnancy, as well as those laws requiring equal treatment based upon gender and disability. Many employers, including municipal employers, have tried to walk this fine line with policies that allow for accommodation of a temporary disability only if it is the result of an on‐the‐job injury. For non‐work related temporary disabilities (which presumably includes pregnancy almost all the time), no accommodation is offered.
The theory behind such policies is to treat similarly situated employees equally, regardless of gender or the nature of the temporary disability. The distinction is drawn between work and non‐work causes of the temporary disability. The rationale for treating on‐the‐job injuries differently is that the workers’ compensation law provides an incentive to return injured workers to work as soon as possible, so as to avoid paying benefits for temporary total disability.
Until about the last year or so, this was a workable policy for an employer to have. But, two cases decided last year, one by the U.S. Supreme Court (Young v. UPS) and one by the Iowa Supreme Court (McQuistion v. City of Clinton) should cause employers to re‐visit and possibly change their policies governing temporary disabilities and pregnancy accommodations. The McQuistion case is particularly important for municipal employers, as it involved potential accommodations to which a pregnant firefighter claimed entitlement.
Both cases dealt with employer policies of the type described here. That is, accommodation was provided for some temporary disabilities, but not others, with pregnancy being within those that were not subject to accommodation. Although the U.S. Supreme Court addressed federal law and the Iowa Supreme Court addressed state law, the practical result from both opinions is the same: This type of policy is presumed to violate the law against pregnancy discrimination. The employer can overcome this presumption if it can show the legitimate reason underlying the policy is sufficiently strong to justify the burden it places on pregnant employees. But, if the practical effect of the employer’s policy is to accommodate a large percentage of non‐pregnant employees while a large percentage of pregnant employees are not accommodated, it will be difficult for the employer to carry its burden.
In the end, a jury will get to decide whether your policy is justified or creates an unreasonable burden. The best way to avoid litigation is to change the policy that automatically results in pregnancy not being accommodated. Each and every condition that results in a disability should be evaluated on its own merits to determine whether it can be accommodated. While this may create more burdens for you each time you have to address a pregnancy‐related request for accommodation, it is more likely to keep you from being sued.
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