United Parcel Service, with its familiar fleet of brown trucks, once asked rhetorically “What Can Brown Do for You?”. Thanks to a recent decision of the United States Supreme Court, UPS now has its answer. The Court’s decision held that UPS and other employers must provide reasonable accommodations to pregnant employees where denying such an accommodation would impose a significant burden on the pregnant employee without a sufficiently strong justification.
While the Court’s decision may have employers outside the Commonwealth scrambling to revise their practices, it likely will have little effect on Massachusetts employers who already are in compliance with the Commonwealth’s robust anti-discrimination laws. To ensure compliance with all applicable laws, employers operating in Massachusetts should keep the following points in mind:
- Pregnancy is a sex-linked characteristic under Chapter 151B. Just as employers may not discriminate against an employee because she is a woman, employers also are prohibited from taking any adverse employment action against an employee because the employee is or may become pregnant.
- Pregnancy discrimination is actionable even if the employer operates under the belief that its conduct is in the best interests of the pregnant employee. Employers may not, for instance, force pregnant employees to take time off prior to giving birth. Likewise, employers may not insist on modifying a pregnant employee’s work assignments if the pregnant employee is physically capable of performing them.
- On the other side of the coin, employers should offer pregnant employees the same accommodations they provide to employees who experience a temporary workplace disability. Consistency is key, and employers should err on the side of making good-faith attempts to accommodate the reasonable needs of their pregnant and disabled employees.
- Pregnancy is not a per se disability under Chapter 151B. Rather, a pregnant employee need only be considered a “handicapped person” where she has a pregnancy-related physical or mental impairment that limits a major life activity, or is regarded as having a history of such an impairment.
- Both federal and state law requires that covered employers permit eligible employees to take unpaid leave to care for the birth or adoption of a child. The Family and Medical Leave Act (“FMLA) grants twelve weeks of leave to both male and female employees, but only covers employers of fifty or more. In contrast, the Commonwealth’s parental leave statute provides eight weeks of leave to all employees working for an entity of more than six employees, but its application is limited to female employees. Employees eligible for both federal and state leave must take such leave concurrently.
Do not make the same mistake as UPS and wait for the Supreme Court to answer your questions. For additional information, please contact one of Conn Kavanaugh’s experienced employment lawyers.