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Employer Guidance Urged for Pregnancy Discrimination Act

Testimony during the hearing showcased an employer's confusion over some of the act's rules.

February 16, 2012
Related Topics: Top Stories - Frontpage, Legal Compliance, Medical Benefits Law, HR/Workforce Trends, Disabilities, Benefit Design and Communication, Leave Management, Discrimination and EEOC Compliance, Health and Wellness, Policies and Procedures, Health Care Benefits, Latest News

Employers could use some further guidance on how to comply with the various federal leave and disability laws, including the Pregnancy Discrimination Act, said a human resources director at an Equal Employment Opportunity Commission hearing on pregnancy discrimination Feb. 16.

Testimony during the hearing showcased an employer's confusion over some of the act's rules.

In written testimony, Deane Ilukowicz, vice president of human resources for Hanover, New Hampshire-based Hypertherm Inc., which designs and manufactures advanced metal cutting systems, said that while her firm strives to offer family-friendly policies to all its associates, "There may be companies that look primarily to the requirements of the law to design their policies. When the laws are complicated and confusing, this can derail even companies who want to do the right thing. In our view, the current laws are confusing, complicated and sometimes contradictory."

Ilukowicz gave an example of "Susan," a full-time purchasing agent who has been with Hypertherm for a year and a half, who is four months pregnant, has been diagnosed with back pain by her physician and has already used nine weeks of Family and Medical Leave Act leave for a back injury that year.

Under this scenario, she returns to work with a note stating she was examined by her doctor and is able to work a limited schedule with alternating periods of rest and standing work, and she has also requested a change in her work hours to help her rest.

The company must consider the FMLA and the Americans with Disabilities Act in considering her requests for accommodation, said Ilukowicz, with leave for pregnancy-related issues falling under the FMLA, and leave as reasonable accommodation falling under the ADA.

"But each law has different provisions which must be reconciled and reviewed and reconciled, including coverage eligibility, coverage thresholds, and length of leave, medical certification, and fitness for duty certification," she said. She noted this process would include having to consult with the EEOC, which regulates the ADA, and the Department of Labor, which regulates the FMLA.

"The Commission's fact sheet provides some general guidance, but does not incorporate" the Pregnancy Discrimination Act, said Ms. Ilukowicz. "More case-study type examples that are not egregious or 'black and white' would help employers ensure that they are in compliance with the law. Some of the administrative time and other employer resources devoted to technical compliance with multiple sets of complex rules that interact with each other could, I submit, be better utilized if devoted more directly to the well-being of our associates."

Ilukowicz said she would like to see clarification of current laws, including the PDA, the FMLA, the Patient Protection and Affordable Care Act's amendment of the Fair Labor Standards Act to require employers to provide reasonable break time for nursing mothers and the EEOC's enforcement guidance on unlawful disparate treatment of workers with caregiving responsibilities.

She concluded by stating that her firm tries to limit announcements to one page.

"Regardless of who 'owns' each respective piece of legislation, EEOC, or DOL, it would be helpful to employers to have coordinated, very concise documents that clearly provide employers what they need to know."

Other speakers at the public hearing included EEOC commissioner Stuart J. Ishimaru, who said, "Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission.

Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers," said Ishimaru, according to a statement issued by the EEOC.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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