The settlement provides monetary and non-monetary relief for Amira to resolve claims that ERA filed on her behalf last year with the California Department of Fair Employment and Housing, alleging that Amira’s employer, a national operator of residential facilities and communities for seniors, had subjected Amira to harassment, other forms of discrimination, and ultimately terminated her because she was pregnant and sought to exercise her right to take pregnancy-related leave. Amira also alleged that the company discriminated against her and other caregivers based on their race and national origin.

Amira’s case is unfortunately not unusual.  ERA has seen a sharp rise in pregnancy discrimination and accommodation complaints in recent years, a trend mirrored at the federal level. (Click here to see ERA’s May 2012 report, Expecting a Baby, Not A Lay-off:  Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, noting a 54% rise in pregnancy discrimination claims filed with the EEOC between 1997 and 2010.)  ERA Staff Attorney Mia Munro is proud to have represented Amira and observes that, “It takes real courage and determination for women like Amira to come forward and complain about these injustices.  We are very pleased that the matter has been resolved to the satisfaction of all parties.”

ERA Legal Director Jennifer Reisch further added that, “This case shows how discrimination against pregnant workers and the failure to provide reasonable accommodations that would enable women to keep working during pregnancy are particularly acute problems, and have especially devastating economic consequences, for women in low-wage jobs and industries.”

ERA fights for women like Amira because we believe that providing pregnant employees with reasonable accommodations on the job is essential to fulfilling the promise of equal opportunity in employment.  This is also why ERA is a strong supporter of the federal Pregnant Workers Fairness Act (PWFA), a bill which would require employers to provide pregnant workers with reasonable accommodations.  Learn more about this important issue and take action to support the PWFA.

*Not her real name

Fortunately for Rose, the California Fair Employment and Housing Commission recently issued amended regulations, effective on December 30, 2012, that clarify that employers must continue providing health insurance coverage during both pregnancy disability leave AND bonding leave under the California Family Rights Act. ERA was able to use those amended regulations to ensure that Rose could take the leave she needed without losing much needed health insurance coverage.

Pregnant workers and families across California will begin the new year with many important increased protections due to amendments to the regulations for the California Fair Employment and Housing Act. These amendments were informed by years of experience of a coalition of California legal services organizations (including ERA), that saw firsthand the issues that most pregnant workers face in the workplace. Below are some of the important changes that were made:

Clarification of the FEHA’s reasonable pregnancy accommodation requirement

• When an employer becomes aware that an employee might need a pregnancy accommodation, the employer must engage in a good faith conversation with a pregnant employee who needs an accommodation to identify a reasonable accommodation. This means that the employer cannot automatically and categorically deny the worker a pregnancy accommodation upon receiving a request, without discussing options and alternatives.
• The regulations now provide examples of reasonable pregnancy accommodation, including: providing break time and space for breast feeding or pumping, providing the employee with a sitting stool, modifying an employee’s work duties or schedule, and providing additional leave to an employee once she exhausts her four months of pregnancy disability leave.

Clarification of the FEHA’s pregnancy disability leave requirement

• Employees can be entitled to pregnancy disability leave for a broad array of pregnancy-related conditions, including: severe morning sickness, gestational diabetes, hypertension, preeclampsia, and post-partem depression.
• The only defense to failing to reinstate an employee when she returns from her pregnancy disability leave is if the employer has a legitimate business reason that is not related to the fact that the employee took the leave. The regulations no longer allow an employer to fail to reinstate an employee when holding her position open during her pregnancy disability leave would substantially undermine the business operations of the employer.
• It may be unlawful for an employer to force a pregnant employee on leave when the employee has not requested leave.

Clarification that employers must provide language appropriate notice to employees that are not English proficient.

If you are an employee that needs more information about your employer’s obligations to provide pregnancy accommodations or leave, please call ERA’s Advice and Counseling Hotline at 1-800-839-4ERA.

Confirming California’s role as a leader in protecting the rights of working pregnant women, the Fair Employment and Housing Commission’s (FEHC) revised pregnancy regulations were approved on November 30th.

When these regulations become effective on December 30, 2012, they will clarify the legal requirement that employers provide reasonable accommodations to pregnant women, such as chairs, frequent bathroom breaks, and assistance with heavy lifting. While a 1999 amendment to the Fair Employment and Housing Act required employers to provide these accommodations, updated regulations were needed to conform to these statutory changes.  In 2011, the law was amended again to compel employers to continue workers’ health insurance during pregnancy disability leave.

The new regulations provide helpful guidance to employers and employees about safeguards for pregnant women in the workplace.  Providing these accommodations is the responsibility of employers and can be critical to the well-being of workers. For example, Laura worked as a program counselor at a facility for people with disabilities. During her pregnancy, on her doctor’s advice, she asked to be relieved from bending and twisting when securing wheelchairs to a bus. Her employer refused, forcing her onto unpaid leave and threatening to fire her if she did not return in four months. The four-month deadline coincided with her due date. Once a legal advocate informed Laura’s employer of their obligation to provide a reasonable accommodation under the law, Laura was reinstated, paid back wages, and given the modification she needed.

But many pregnant workers do not realize they are entitled to these accommodations and do not seek legal help. The revised regulations will make it clearer to employers and employees alike that pregnant workers are fully protected in the workplace.  In addition to explaining an employer’s duty to provide reasonable pregnancy accommodations and to continue health benefits during pregnancy leave, the final FEHC regulations also

• clarify that it is unlawful for an employer to require a pregnant woman to take a leave of absence when she has not requested leave;
• explain that employers must provide lactation accommodations to nursing mothers;
• list examples of conditions that entitle a woman to take up to four months of job-protected pregnancy disability leave, including gestational diabetes, loss or end of pregnancy, and post-partum depression; and
• describe an employer’s obligation to grant extended leave beyond 4 months if an employee has a qualifying disability under the FEHA.

A coalition of women’s and civil rights organizations* provided essential comments and testimony on the proposed regulations during a two and a half year period, and helped ensure that the final regulations provide the protection to pregnant workers that the Fair Employment and Housing Act mandates. The coalition applauds the approval of the regulations, and looks forward to seeingimproved employer compliance with the Act.

Noah Lebowitz, Board Member of coalition member California Employment Lawyers’ Association said:  “This is a great day for all Californians.  The clarity provided by these regulations will empower working pregnant women to know and exercise their rights and will simultaneously provide an easy-to-understand guide for employers to comply with the provisions of the Fair Employment and Housing Act.  The result will surely be an increase in employment and a reduction of litigation.”

According to Sharon Terman, Senior Staff Attorney at the Legal Aid Society–Employment Law Center, “California has long been a leader in providing broad protections for working pregnant women. We are thrilled that the final regulations reflect the intent of the law and confirm these basic rights.”

Jennifer Reisch, Legal Director at Equal Rights Advocates, noted that, “Allowing valuable employees to continue working throughout their pregnancies whenever they can makes sense for families andbusinesses.  We are very pleased that these regulations uphold the letter and spirit of California’s pregnancy accommodation law.”

The following organizations gave input and helped shape the revised pregnancy regulations:

• American Association of University Women–California
• California Commission on the Status of Women
• California Employment Lawyers Association
• California Women’s Law Center
• California Work and Family Coalition
• Center for WorkLife Law, UC Hastings
• Equal Rights Advocates
• Legal Aid Society-Employment Law Center
• Women’s Employment Rights Clinic of Golden Gate University Law School

 With millions without health care coverage in the United States, California demonstrated leadership in passing Senate Bill 299 (SB 299) to close a gap in health care coverage impacting women workers when they were most vulnerable – while on brief pregnancy leaves.  The bill requires most California employers to continue health care coverage for workers on pregnancy disability leave, even if those workers do not otherwise qualify for such benefits under the federal Family and Medical Leave Act (FMLA).    Because SB 299 affords workers benefits that the FMLA intended to preserve, SB 299 is not preempted by ERISA, as argued by some skeptics.

Congress enacted the FMLA in 1993 as a critical first step in alleviating the average citizen’s struggle to balance family responsibility and economic security.  One essential component of the FMLA is the provision of 12 weeks of unpaid job-protected leave for certain family and medical situations (including pregnancy), and continuation of medical benefits during such leave.  In enacting the FMLA, Congress expected and encouraged states to provide even greater family or medical leave benefits; to that end, the FMLA expressly saves more protective state laws from preemption.  29 U.S.C. § 2651(b).

Consistent with the goals of the FMLA, California passed SB 299 (Cal. Gov’t Code § 12945(a)(2)(A)), which requires employers with five or more employees to continue providing medical benefits for female employees on job-protected pregnancy disability leave for up to four months before returning to work.  SB 299 requires approximately four additional weeks of continued medical coverage during a pregnancy leave than the FMLA (which applies to employers with 50 or more employees).

That SB 299 builds permissibly upon the FMLA is made clear by the official position of the U.S. Department of Labor (DOL), the federal agency responsible for interpreting, administering, and enforcing ERISA and the FMLA.  As head of the DOL, the Secretary of Labor has taken the position that ERISA preemption of a state law providing greater family or medical leave rights than the rights established under the FMLA would impair or otherwise supersede the FMLA, impermissibly turning FMLA’s floor into a ceiling.  The DOL’s theory, sometimes referred to cheekily as the “double savings” clause theory, is based on the “savings clause” of the FMLA which states that nothing in the FMLA “shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under” the FMLA (29 U.S.C. § 2651(b)), and the “savings clause” of ERISA, which provides that nothing in the statute “shall be construed to . . . impair, or supersede any law of the United States,” which includes the FMLA. 29 U.S.C. § 1144(d).

Some question the validity of SB 299 based on a federal court decision, Sherfel v. Gassman, 2012 U.S. Dist. LEXIS 140001 (S.D. Ohio 2012), which concerned the Wisconsin Family and Medical Leave Act (WFMLA).  The Sherfel case, which is not binding, involved a law that is materially different from SB 299.  The Sherfel court’s dismissal of the DOL’s theory as it applies to the WFMLA thus does not impact the validity of SB 299. In Sherfel, the WFMLA was enforced to require an employer to provide paid disability leave to an employee who was not “disabled” under the terms of the employer’s ERISA plan, and thus, not eligible for payment under the plan.    SB 299, on the other hand, simply requires a modest continuation of the medical benefit coverage already provided to working employees, while they are out on time-limited pregnancy disability leave.  SB 299 is thus merely an extension of the same benefits that the FMLA provides.  The Sherfel court  acknowledged that laws like SB 299 are different from the WFMLA, noting that the FMLA, which also requires continuation of medical benefits coverage while employees are on job-protected medical leave, “does not create or supplement employer benefits” as did the WFMLA.  Sherfel at *71.

Likewise, the Senate report accompanying the FMLA stated explicitly that state family leave laws “including leave laws that provide continuation of health insurance or other benefits . . . are not preempted by ERISA.”  S. Rep. No. 103-3, at 38 (1993).  SB 299 provides precisely the kind of “greater” leave rights that the drafters of the FMLA intended to preserve and encourage.  The Sherfel court’s analysis and reliance on the Supreme Court’s decision in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), does not support preemption of SB 299.  Instead, Shaw can be read to support the argument against preemption.  In Shaw, the Supreme Court held that ERISA cannot be construed to impair any federal law, and to the extent that the state Human Rights Law at issue in Shaw provides a means of enforcing Title VII’s commands, preemption of the Human Rights Law would impair federal law.  The Supreme Court in Shaw held that insofar as state laws prohibit employment practices that are lawful under Title VII, preemption would not impair federal law since Title VII is neutral on the subject of all employment practices it does not prohibit.  Quite the opposite is true with respect to the FMLA, which the DOL has determined unambiguously expresses Congress’ intention to encourage states to provide more substantial family and medical leave rights.  Aurora Med. Group v. Dep’t of Workforce Development Equal Rights Div., 236 Wis. 2d 1, 19-21 (2000).  SB 299 furthers that purpose; ERISA preemption of SB 299 would thus impair the FMLA.

There are also practical considerations.  Benefit plans are designed, and certain employers are required to comply, with federal laws that mandate continued healthcare coverage during certain leaves.  SB 299 does not significantly complicate the administration of ERISA plans, as it does not require providing coverage to employees who are not already covered by a medical plan. As the country attempts to muddy through a national health care crisis, California has taken a positive step to protect hard working pregnant workers from lapses in insurance coverage.  SB 299 should be exalted, not attacked, because it ensures that pregnant women are not forced to choose between risking their health by returning to work early, or taking doctor-recommended leave but losing their health insurance benefits.  SB 299 not only survives ERISA preemption, it is an important model for other states ensuring basic health care protections for their workers.

Michelle L. Roberts is a partner at Springer-Sullivan & Roberts LLP, a firm specializing in ERISA disability benefits claims.

Mia Munro is a Staff Attorney at Equal Rights Advocates, a nonprofit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls.

Earlier this year in conjunction with the introduction of the House version of the bill, ERA released a ground-breaking report highlighting the importance of the new law for working women and their families. Entitled Expecting a Baby, Not a Lay-Off: Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, the report traces 12 years of success of similar legislation in California. The report is available online at http://www.equalrights.org/media/2012/ERA-PregAccomReport.pdf.

“Working families need and want to keep working. ERA strongly supports the PWFA because similar protections under California law make the case for federal change,” said Noreen Farrell, ERA’s Executive Director. “Pregnant women are working with accommodations. Businesses are benefitting from happy and productive long-term employees. It is a win-win.”

To hear the stories of pregnant workers and the simple accommodations that they need but are denied at work, read The Refusal to Accommodate Pregnant Workers: Real Accounts of the Devastating Consequences for Workers and Their Families, compiled by a coalition of national women’s advocacy organizations and Equal Rights Advocates.

About Equal Rights Advocates
Equal Rights Advocates (ERA), founded in 1974, is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Through its campaign approach—incorporating public education, legislative advocacy, and litigation—ERA seeks to assist women and girls throughout a life-long continuum: ensuring equality in their educational experience, combating sex discrimination in the workforce, and advocating for workplaces hospitable to working families. To learn more about ERA’s work, visit www.equalrights.org.

CONTACT:
Noreen Farrell, Executive Director- Equal Rights Advocates, 415-575-2398; nfarrell@equalrights.org

San Francisco—Equal Rights Advocates announced today that the Pregnant Workers Fairness Act (PWFA) has reached the 100 co-sponsor mark and continues to build support nationally. The PWFA would ensure that pregnant women are not forced out of jobs unnecessarily or denied reasonable job modifications that would allow them to continue working. The bill was introduced by Representatives Jerrold Nadler (D-NY), Carolyn Maloney (D-NY), Jackie Speier (D-CA) and Susan Davis (D-CA) on May 8, 2012 and is supported by Equal Rights Advocates and other women’s advocacy organizations, unions, and business groups.

“California has led the nation in requiring reasonable accommodations to allow pregnant women to keep working as long as they are willing and able and it is high time for the federal government to follow suit by passing this legislation,” stated Noreen Farrell, Executive Director of Equal Rights Advocates, a national legal advocacy organization for women and girls. A recent study by Equal Rights Advocates, highlighting California’s 12 years of experience with a similar law, shows that litigation and discrimination claims decreased and that pregnancy accommodations often involve practices helpful to all employees and can benefit an employer’s bottom line.

To learn more about the Pregnant Workers Fairness Act and ERA’s Report, Expecting a Baby Not A Lay-Off: Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, see www.equalrights.org.

The legislation has the support of a broad coalition of civil rights and women’s advocacy organizations, unions, and business associations, including: A Better Balance; the AFL-CIO; the American Association of University Women; the American Civil Liberties Union; the American Congress of Obstetricians and Gynecologists; California Women’s Law Center; Equal Rights Advocates; Hadassah; the Leadership Conference on Civil and Human Rights; Legal Aid Society-Employment Law Center; Legal Momentum; the Main Street Alliance; the National Partnership for Women & Families; the National Organization for Women Foundation; the National Women’s Law Center; and many others.

Equal Rights Advocates is a nonprofit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls.

On May 8, 2012, the Pregnant Workers Fairness Act (PWFA) was introduced by U.S. Representatives Jerrold Nadler (D-NY), Jackie Speier (D-CA), Susan Davis (D-CA), and other legislators. HR 5467 would require employers to provide pregnant workers with reasonable accommodations to enable them to continue working during a financially crucial time in their lives.

“Working families need and want to keep working. ERA strongly supports the Pregnant Worker Fairness Act because similar protections under California law make the case for federal change,” said Noreen Farrell, ERA’s Executive Director. “Pregnant women are working with accommodations. Businesses are benefiting from happy and productive long-term employees. It is a win-win.”

The Report first examines why current federal law has not consistently ensured the minor accommodation of employees who are able to work during their pregnancies. It then tracks the development of state laws that require accommodations for pregnant workers, with a particular focus on the sweeping success of California’s pregnancy accommodation law, as support for change at the federal level.

The California data considered in ERA’s Report – ERA’s Hotline and experience with clients, cases based on state pregnancy accommodation laws, and statistical data about complaints filed with California’s state administrative agency – provide important insight into how California employees and business have fared since California’s pregnancy accommodation law went into effect in 2000.

Key findings of include:

• The number of court and administrative decisions involving California’s pregnancy accommodation law is very low, suggesting that the law has not prompted a flood of litigation.
• The accommodations sought are generally modest, reasonable, and easily met by employers
•  Accommodation laws are particularly important for protecting low-wage hourly workers.
•  Pregnancy accommodations often involve practices helpful to all employees and can benefit the employer’s bottom line.
•  California’s pregnancy accommodation law has not prompted more pregnancy discrimination.  In contrast to federal law discrimination charges, which have risen by 54 percent since 1997, the number of pregnancy discrimination charges filed with California’s state agency has decreased since 1997.

The Report contains a number of case studies that show the need for the new federal law. The story of Maria is a case in point. Maria handles security duties for a California employer. When Maria discovered that she was pregnant, she requested a stool to sit on and more frequent duty rotation so she could move more throughout the day. Her employer refused to accommodate her pregnancy limitations and placed her on involuntary early leave. ERA intervened on Maria’s behalf and informed the employer about the requirements of California’s pregnancy accommodation law. After a productive brainstorming session exploring possible solutions, the matter was quickly resolved without undue stress to Maria and without litigation. Rather than sit home without pay, Maria continued to be a productive employee for months. She preserved her Family and Medical Leave Act (FMLA) leave for when she needed it most.

Women in other states who are profiled in the report were not so lucky. Angie, a train conductor in Mississippi, was forced to take three extra months of unpaid leave instead of allowing her to work with the occasional assistance of willing co-workers. The stress and financial strain was immense for Angie, who was already anxious about becoming the sole support for her new family. Equal Rights Advocates was limited by federal and Mississippi law in its ability to assist Angie.

Celebrate Mother’s Day by supporting the PWFA at www.equalrights.org

NYU Law Reproductive Justice and Women’s Rights Fellow Mia Munro has made great progress in leading the charge to protect the rights of pregnant women in the workplace as part of ERA’s Marginalized Workers and Work & Family campaigns.

Since joining the organization in August, Mia and a fellow at the Employment Law Center have taken the lead in drafting a much-needed FAQ section on pregnancy disability and family care leave for the California Department of Fair Employment and Housing (DFEH) website. Mia has also spearheaded an educational outreach program to inform pregnant women about their rights through their medical providers.

Over the past several months, Mia has provided direct services to the many women seeking information and assistance with pregnancy-related issues at work via our Advice and Counseling hotline. Most recently, she received a call from a California woman distressed about an employer’s policy to discontinue health insurance benefits for employees that take more than a month of pregnancy disability leave. Mia advised the caller about the new amendment to the California Pregnancy Disability Leave Law, co-sponsored by ERA, which requires employers to continue providing health care benefits to women for the entire duration of their job-protected pregnancy disability leave, up to four months. Mia prepared a letter describing the new law for the caller to provide to her employer.

Prior to the April 29, 1979 implementation of the Pregnancy Discrimination Act (PDA), employees of AT&T and its subsidiaries who suffered from temporarily disabling conditions were given “service credit” for their disability-related absences from work while pregnant women were not. Instead, pregnant women were forced to take “personal leaves” for their disability-related absences for which they were not given service credit. As a result of such lost credit, thousands of female AT&T workers have been excluded from lucrative early retirement opportunities or given lower pension benefits while co-workers who were absent from work for the same amount of time due to other medical disabilities experienced no such losses. After April, 1979, when the PDA became law, such practices were outlawed. AT&T changed its policies for new employees, but continues to deduct pregnancy-related leave time taken before 1979 when calculating pension and retirement benefits.

AT&T’s benefit calculation policies at issue in the lawsuit violate Title VII legal guidelines issued by the Equal Employment Opportunity Commission (EEOC). In 1998, the EEOC concluded that AT&T’s policies did not comply with the law. In the 1991 case Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992), the Ninth Circuit Court of Appeals held that Pacific Bell—a former AT&T subsidiary company—had violated Title VII and ERISA by using similar pension calculation policies to deny early retirement offers to female employees who had taken pregnancy leaves before April, 1979. The Pallas case was resolved in 1998 with a multi-million dollar settlement that included pension adjustments for thousands of women affected by the policies. Despite these rulings, however, AT&T has continued to exclude pregnancy-related disability leave taken prior to April, 1979 in calculating pension benefits for its female employees.

Each of the individual plaintiffs experienced losses as a result of AT&T’s actions. Plaintiff Noreen Hulteen began working for an AT&T subsidiary company in 1965. In 1968, her employer forced her to take personal leave for her pregnancy and disabilities that occurred while she was on leave. Due to this policy, Hulteen was denied eight months of service credit toward her pension and related benefits. Since retiring in 1994, Hulteen’s pension checks have been reduced by the amount of the lost leave time due to her pregnancy. Likewise, plaintiffs Eleanora Collet, Arma Horton, and Betty Snyder each were denied service credit for pregnancy-related disability leaves taken prior to 1979, which has decreased their pension benefits.

The individual plaintiffs are represented by Equal Rights Advocates and cooperating counsel Judith E. Kurtz, and the law firms of Van Bourg, Weinberg, Roger & Rosenfeld, and Erickson, Beasley, Hewitt & Wilson. The CWA, which represents non-management employees at AT&T, is represented by attorney Mary K. O’Melveny.

All of the counsel for plaintiffs and the CWA were involved in the Pallas case against Pacific Bell. In addition, the CWA has been a party to several lawsuits against former AT&T subsidiaries seeking relief for victims of discriminatory benefit calculation policies outlawed by the PDA. Describing the current lawsuit, CWA attorney O’Melveny said: “It is time that AT&T finally took responsibility for its ongoing discrimination against women who were pregnant in the 1960s and 1970s.”

The plaintiffs’ claims include damages and injunctive relief based on Title VII, 42 U.S.C. Sec. 2000e et seq., and ERISA, 29 U.S.C. Sec.1001 et seq.