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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

April 2015, vol. 16, no. 2

An overview of Illinois’ pregnancy fairness laws

On January 1, 2015, Public Act 98-1050, a legislative enactment intended to protect pregnant women and new mothers from discrimination and retaliation in the workplace, went into effect. The new provisions in Illinois law establish that pregnancy, childbirth, and medical conditions related to pregnancy or child birth are now protected under the Illinois Human Rights Act (775 ILCS 5/1 et seq.). It is critical that employers, including government agencies, know the new legal requirements regarding discrimination and retaliation, as well as reasonable accommodations and notice to employees. Those who do not understand the new requirements risk a lawsuit.

Current Laws did not Protect Pregnant Women

The Illinois General Assembly determined that current workplace laws did not adequately protect pregnant women and new mothers from workplace discrimination. Lawmakers noted that pregnant women and new mothers were often forced into unpaid leave or fired, despite the fact that employers could often make reasonable accommodations that would allow them to continue to work. Because women make up nearly fifty percent of the Illinois workforce and more than fifty percent of those women are of childbearing age, the problem impacted thousands of Illinois citizens. Some of the problems women faced without reasonable accommodations included lost wages, unemployment, lost opportunities and benefits. These all combined to have lifelong repercussions for women’s economic security and the well-being of their families.

Most women are able to work during pregnancy. Enabling them to do so, the General Assembly concluded, is not only good for them but good for businesses. Providing pregnant women with reasonable, temporary accommodations can lead to increased productivity, retention, and morale, while decreasing re-training costs and health care costs associated with pregnancy complications.

Pregnancy is Now a Civil Right in Illinois

In Illinois, it is now a civil rights violation to discriminate against applicants or employees because they are pregnant, have recently given birth, or have medical conditions related to pregnancy or childbirth. The new legal provisions apply to all employers having one or more employees—without regard to whether they are part-time, full-time, or probationary employees. The change in Illinois law occurred by amending the Illinois Human Rights Act to include pregnancy as a protected class. “Pregnancy” has been broadly defined to include: pregnancy, childbirth and medical conditions related to pregnancy or childbirth. 775 ILCS 5/1-103(L-5).

Under the new provisions, it is now a civil rights violation to make employment decisions, including but not limited to: hiring, segregating, recruiting, promoting, renewing employment, providing training, discharging, disciplining, determining tenure or seniority, or making any decision regarding the terms, privileges or conditions of employment, on the basis of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. Women affected by pregnancy, childbirth, or medical conditions related to pregnancy or childbirth are to be treated the same for all employment-related purposes, including benefits under fringe benefits programs, as other persons not so affected but similar in their ability or inability to work, regardless of the source of the inability to work or employment classification or status. 775 ILCS 5/2-102(I).

Employers Must Provide Reasonable Accommodations to Covered Women

Employers must provide reasonable accommodations to applicants and employees who request them and are covered by the statute, unless the accommodation would result in undue hardship to the employer. Employers must engage in an interactive process with the person similar to that required under the Americans with Disabilities Act to determine what, if any, accommodation should be provided. “Reasonable accommodation” has been defined to include: “reasonable modifications or adjustments to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to be considered for the position the applicant desires or to perform the essential functions of that position[.]” 775 ILCS 5/2-102(J).

Typical reasonable accommodations may include, but are not limited to:

• More frequent or longer bathroom and rest breaks

• Additional hydration i.e. water breaks

• Private non-bathroom space for expressing breast milk or breastfeeding

• Seating modifications

• Assistance with manual labor

• Light duty assignment

• A temporary transfer to a less strenuous or hazardous position

• Creating a more accessible worksite

• Acquisition or modification of equipment

• Job restructuring

• Part-time or modified work schedule

• Modification of examinations, training materials, or policies

• Reassignment to a vacant position

• Providing time off to recover from conditions related to childbirth

• Granting a leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth

Employers may request documentation regarding the need for a reasonable accommodation from the applicant’s or employee’s health care provider—provided that the request is job-related and consistent with business necessity. The request must also be limited to: (1) information concerning the need or medical justification for the requested accommodation; (2) a description of the medically advisable accommodation; (3) the date the reasonable accommodation became medically advisable; and (4) the probable duration of the reasonable accommodation will be required.

Employers May Not Retaliate and Must Reinstate Returning Employees

The new provisions also prohibit employers from retaliating against an employee. Employers cannot deny employment opportunities or benefits, or take any adverse actions against applicants or employees because they requested, attempted to request, used, or attempted to use a reasonable accommodation. Employers can neither require applicants or employees to accept an accommodation when they did not request it and choose not to accept it, nor require an employee to take leave if another accommodation can be provided.

Employers must also reinstate returning employees to their original job (or equivalent position) with equivalent pay, seniority, retirement, fringe benefits, and other applicable service credits, unless the employer can demonstrate “undue hardship.” 775 ILCS 5/2-102(J).

Employers Do Not Have to Provide an Accommodation If It Would Cause an Undue Hardship

Employers are not required to provide accommodations if they can show that it would cause an undue hardship on the employer’s ordinary operation. The burden of proving undue hardship rests squarely on the employer. Undue hardships may include actions that are prohibitively expensive or disruptive when considered in light of factors including: (1) nature and cost of the accommodation needed; (2) overall financial resources of facility, number of persons employed, effect on expenses and resources; (3) overall financial resources of the employer, overall size of business; and (4) type of operation. 775 ILCS 5/2-102(J). Moreover, employers are not required to create additional positions that the employer would not otherwise have created, or to discharge, transfer, or promote any employee who is not qualified to perform the job.

Employers Must Provide Notice of These Rights

Finally, the new provisions require that employers provide employees with appropriate notice of these rights in a conspicuous location on the work premises and must also include notice in employee handbooks. The Illinois Department of Human Rights has prepared a Pregnancy Rights Notice in English and Spanish that employers may obtain on the department’s website, <http://www2.illinois.gov/dhr/Publications/Pages/Pregnancy_Rights_Notice_Requirement.aspx>. Employers should take care to post these notices in a conspicuous location at their premises. ■