Member Groups

The Catalyst
The newsletter of the ISBA’s Standing Committee on Women and the Law

August 2014, vol. 20, no. 2

Illinois Pregnancy Accommodation Act

While writing this article from my corner coffee shop, I saw a very, very pregnant woman standing in a long line of the bleary-eyed and caffeine deprived. She was sweating (glowing) and smiling sweetly, tiredly. She appeared a perfect balance of contentment and discomfort, and people noticed her. When they did, they put her ahead in line. A man offered to give up his nearby seat and order for her. Not necessary, she got moved to the front. Then, clutching her steamy prize in tiny hands, she and her bun in the oven wandered out to face the world as an empathic patron held the door.

Now it seems Illinois law may be on board with what most people already do naturally – recognize and make accommodations for pregnant women.

This past May, HB0008, the Pregnancy Accommodation Act (also referred to as “The Pregnancy Fairness Bill”) passed both the Illinois House and Senate. In June it was sent to the Governor1 and we now await word of Gov. Quinn’s signing it into Illinois law. The Bill purports to amend the Illinois Human Rights Act by including pregnancy among currently protected classes. Under the modified Act, individuals will be protected from unlawful discrimination based on race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service.2

The Bill protects women who are pregnant or have recently given birth from violations in the workplace in six general areas:

1. Failing to make requested reasonable accommodations that pose no undue hardship to the employer;

2. Denying employment to pregnant applicants;

3. Taking adverse action based on the need to create reasonable accommodations;

4. Forcing pregnant women to accept unrequested accommodations;

5. Forcing leave if reasonable accommodations can be provided for; and

6. Failing to reinstate the employee to an original or equivalent position, pay, seniority, and benefits.3

A few definitions are in order at this point. For the purposes of the Act and this article, “pregnancy” is defined as “pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth.”4

The Act defines “reasonable accommodations” as “actions which would permit such an employee to perform in a reasonable manner the activities involved in the job or occupation including an accessible worksite, acquisition or modification of equipment, job restructuring, and modified work schedule.”5 The most frequent accommodations will likely involve more/longer bathroom breaks, access to places to sit, limits on lifting, and access to private non-restroom areas for breastfeeding.

“Undue hardship” comes down to “an action that is prohibitively expensive or disruptive” in consideration of factors such as the nature and cost of the accommodation needed, the impact, financially and otherwise, of the accommodation upon the operation of the facility or facilities involved in the provision of the reasonable accommodation, overall financial resources of the employer, size of business with respect to the number of employees, the number, type, and location of facilities, and the type of operation of the employer.

Although employers are already familiar with the reasonable accommodation framework for people with disabilities, sadly, many refuse to accommodate pregnant women. Encouraging women to work during pregnancy allows for them to take longer post-childbirth leaves of absence, which is good for parental bonding and postnatal recovery. From here one can take the reasonable stance that this quality bonding time can aid in the development of healthy, productive individuals who later in life may provide a positive contribution to the Illinois workforce.

Allowing women to work during pregnancy with reasonable accommodations may be great for businesses as well: adequate support for pregnant employees could bolster morale, productivity, even company loyalty. Keeping employees who know their jobs well is more efficient than hiring and training new ones. The cost of providing reasonable accommodations to trained, skilled existing employees rings in as the more favorable alternative to the time and productivity cost of interviewing, hiring, and training new ones.

Nearly half of the workforce in Illinois is composed of women, and of those, the majority are of child-bearing age.6 Most women work during pregnancy.7 Many pregnant women are single mothers and the sole breadwinners of their families. When temporarily limited in their ability to perform certain functions required by their jobs, these women are often fired, even though reasonable accommodations may be available to allow them to continue work through pregnancy. When these women lose their jobs, their families suffer. Arguably, the entire state of Illinois suffers, detrimentally affecting the very employers who terminated these women.

In essence, to determine whether requested accommodations must be provided by law comes down to a balancing test between the best interests of both the requesting employee and the resources, financial and otherwise, of the employer.

Who would be eligible to request? Applicants, probationary, part-time and full-time employees who are pregnant or returning to the workforce after childbirth.

The industries likely to be most affected by the Act are those that involve standing, lifting, and manual labor such as retail sales, food service, and delivery.

An important aspect of the Act is that if an employee does not ask for or does not accept accommodations, employers cannot treat her any differently than other employees or they risk triggering the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k).8

The employer has the burden of proving prohibitive undue hardship. If the employer provides or is required to provide reasonable accommodations to a similarly situated employee, it creates a rebuttable presumption that the accommodation does not impose an undue hardship. Employers would not be required to discharge, transfer, or promote any unqualified employee to make the accommodation, unless they would be required to do so for other classes of individuals in need of the accommodation. All of these requirements and the procedure for filing a violation claim must be posted by the employer and/or incorporated in the employee handbook or they face a civil rights violation charge. Additionally, it will be a civil rights violation for an employer to retaliate against an employee for using, attempting to use, requesting, or attempting to request a reasonable accommodation under the Act.

Pregnancy Accommodation is not currently required by Federal law under the Americans with Disabilities Act of 1990, 42 U.S. C. § 12101, et seq.,9 and Illinois is among the few states that are ahead of the curve in proposing these changes in legislation.

Angelina M., a married Chicago mother and working professional, is contemplating another child but the maternity leave policies in place at her current job give her pause. She would rather work during pregnancy and take leave after childbirth, but she intends to breastfeed and the infrastructure at her current workplace does not allow for any privacy for pumping breast milk aside from the women’s restroom, which is not at all an attractive option to her.

Angelina is seriously concerned about post childbirth accommodations. “I’m fortunate to have an office job, and no one monitors my bathroom breaks. [But] there’s no separate breastfeeding room or breast pumping room. There’s just a lot to work around.” If reasonable pregnancy accommodations were provided, “I’d be prone to not second-guessing having another kid based on work. It would make it so much easier, honestly. There would be things you just don’t have to think about because they’d already be there for you.”

Angelina continues: “A lot of the fear with women is that if you get pregnant and go on leave, you’re not going to come back. That’s always a big fear with employers. But, part of the reason they don’t come back is that the work doesn’t accommodate for the family situation. Flexibility is key once that baby arrives. Hands down. The more work accommodates families, the more women will return to work. It’s hard to raise healthy families without flexibility. I was laid off last year and...there’s potential I might get laid off again. In terms of trying to have another child, I might as well not even bother trying to interview for other jobs. There’s no way on Earth someone’s going to hire a pregnant lady. The assumption is that you’re not going to be fully engaged, that you’re just going to turn around and leave. I can guarantee you, if a woman is interviewing for a job while she’s pregnant, she wants to work after pregnancy. Otherwise there would be no point. I also know a lot of women who wait to tell their boss that they’re pregnant for fear of some kind of retribution, fear of maybe losing their jobs, of being treated differently because now they’re pregnant, and I don’t mean ‘differently’ in a ‘Here, let me help you,’ sort of way.”

Seems like a “no-brainer” to understand that if a woman is deterred from working, applying for a job, telling her boss of her pregnancy, or making a positive upward move to advance her own career, it would be detrimental not just to that individual and her family, but potentially to the community and the state at large.

I wonder about that pregnant woman in the coffee shop line. I wonder if she’s working during her pregnancy like so many Illinois women do, and if so, what if anything her employer is doing to support her in the workplace. It seems that soon in Illinois, people like her will not have to worry so much about employers doing what we as a society generally already do on a social level—switch your spot in line, give up your seat, hold a door—offer easy, reasonable accommodations that don’t pose an undue hardship. Now for the Feds to catch up. ■

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Jennifer B. Wagner is a Chicago-based criminal, traffic/DUI, and expungement attorney. She is a member of the Illinois State Bar Association’s Standing Committee on Women & the Law, an ISBA Traffic Laws and Courts Section Member, and a current nominee for the Illinois Association of Criminal Defense Lawyers’ Young Lawyer Award. She can be reached by phone at (312) 577-7608.

1. Status of HB0008 Illinois General Assembly: http://www.ilga.gov/legislation/BillStatus.asp?DocNum=8&GAID=12&DocTypeID=HB&SessionID=85&GA=98

2. Full text of HB0008: http://www.ilga.gov/legislation/fulltext.asp?DocName=09800HB0008sam001&GA=98&LegID=68233&SessionId=85&SpecSess=0&DocTypeId=HB&DocNum=0008&GAID=12&Session=

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548 (7th Cir. Ind. 2011).

9. Americans with Disabilities Act of 1990, 42 U.S. C. § 12101, et seq.