WELA Press Release: New Pregnant Workers Law

On May 17, 2017 Governor Inslee signed the pregnant workers accommodations act that Washington Employment Lawyers Association (WELA) worked so hard to get passed. WELA member Katherine Chamberlain prepared this press release from WELA and sent it out Wednesday:

Wednesday, May 17, 2017

New Law Requires Washington Employers to Help Pregnant Workers Remain Part of the Workforce During Their Pregnancies

Gov. Inslee on Tuesday signed into law strong new protections for pregnant workers in Washington. The Healthy Starts Act (Senate Bill 5835) requires Washington employers to provide workplace accommodations to pregnant workers who need them. The law prohibits employers from firing a pregnant worker because she needs an accommodation, or from forcing a pregnant employee to take leave from work if another reasonable accommodation can be provided. The Washington Employment Lawyers Association strongly supports the law.

Until now, Washington law only required employers to accommodate a pregnant worker in the workplace when she had a “disability,” or to the same extent the employers accommodated non-pregnant workers.

As a result, most pregnant workers who needed accommodation for their pregnancies previously had no right to an accommodation, such as for the nausea, vomiting, extreme fatigue, and back pain that accompany a large number of typical pregnancies. Although healthcare providers regularly recommend limits on heavy lifting, sitting or standing for long periods of time, or travel, especially in the final trimester of a woman’s pregnancy, too often employers refused to accommodate, fired pregnant women with these restrictions, or forced them onto unpaid leave—during a time when they needed income, and healthcare benefits, the most.

Now, “Washington has a straightforward law that supports pregnant workers and promotes healthy pregnancies by requiring employers to provide reasonable accommodations to pregnant women,” explained employment lawyer Katie Chamberlain, a member of WELA’s legislative committee who testified in favor of the new law. “Reasonable accommodations include: more frequent restroom breaks; modification of no food or drink policy; job restructuring; modified work schedule; reassignment to a vacant position; modification of equipment, seating, or work station; temporary transfer; assistance with manual labor and limits on lifting; and schedule flexibility for pre-natal visits, and may include other changes to the job or work environment.”

An employee who is denied a reasonable accommodation for her pregnancy, or who is fired or otherwise retaliated against by her employer for requesting an accommodation, can seek to vindicate her rights, get her job back, or obtain compensation, through a lawsuit.

Under the new law, an employer need not provide an accommodation if doing so would impose an undue hardship, which means an action requiring significant difficulty or expense. The new law applies to employers with 15 or more employees and will take effect in 90 days.

The Washington Employment Lawyers Association’s Legislative Committee is proud to have advocated for this bill with Representative Jessyn Farrell, Senator Karen Keiser, and many other allies.

NLRB Determinations Regarding NLRA Coverage of Housekeeping versus Theology Faculty at Religious Universities

In Saint Xavier University, 365 NLRB No. 54 (April 6, 2017), the National Labor Relations Board found that housekeepers of a self-identified religious educational institution are within the Board’s jurisdiction. The Board applied Hanna Boys Center, 284 NLRB 1080 (1987), finding that non-teaching employees of religious institutions or nonprofit religious organizations will be covered unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. This is in contrast to the Board’s finding that faculty employees in Theology and Religious Studies Department and in its School of Theology and Ministry are NOT covered because the University holds those employees out “as performing a specific role in creating and maintaining the school’s religious educational environment.” See Seattle University, 364 NLRB No. 84 (August 23, 2016).

Ninth Circuit Rules in Favor of Employees in Two Sexual Harassment Cases

On March 24, 2017, the Ninth Circuit determined in Anderson v. CRST International, Inc., et al, No. 15-55556 that a jury could find that an employer’s remedy in response to a female truck driver’s sexual harassment complaint was not enough even though the employer separated her from the offending co-worker. The Ninth Circuit explained: “[] Anderson presents evidence that CRST never actually investigated her complaint and never informed Vegtel of the fact that he was prohibited from driving with female truck drivers in the future.” This holding leaves open an interesting question of the extent of an employer’s obligation to inform an employee of the reparative action taken. Most employers refuse to share that information with complaining employees, citing to confidentiality of personnel records. That approach can now be challenged with this precedent.

The Ninth Circuit also reversed summary judgment because of the way that the employer treated the female truck driver after she complained, holding that a jury could find retaliation because the employer failed to reassign her to a new truck route after the incident while providing her with an ambiguous email with a list of other female truck drivers with whom she could work. The Ninth Circuit made clear that “an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position.”

Also, on February 23, 2017, the Ninth Circuit determined in Zetwick v. County of Yolo, No. 14-17341 that a jury could find that a male sheriff created a hostile or abusive work environment through his conduct of hugging and kissing female employees more frequently and in a different way than male employees. The Ninth Circuit rejected the argument that hugging could only constitute “ordinary workplace socializing.” This case also highlights that applying Title VII is not a “mathematically precise test” but, rather, a Court must truly consider the totality of the circumstances.

11th Circuit Finds Title VII Does Not Protect Against Sexual Orientation Bias

The 11th Circuit in Evans v. Georgia Regional Hospital, Case No. 4:15-cv-00103-JRH-GRS (March 10, 2017) finds that Title VII doesn’t protect sexual orientation bias. This is in contrast to the EEOC’s interpretation, which is stated on its website as: “While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

Labor & Employment Law Developments Under the Trump Administration

National Labor Relations Board (NLRB): On January 25, 2017, Philip A. Miscimarra (R) appointed as acting chair to the NLRB. People’s World website reports that prior to 2013, Miscimarra worked for several law firms with a reputation for union-busting and as an NLRB Board member, he “consistently dissented from rulings favoring working people that have been handed down by the (pro-union Democrat) Board majority.”

Equal Employment Opportunity Commission (EEOC): On January 25, 2017, Victoria Lipnic appointed to serve as acting chair of the EEOC. According to a Law360 article, Lipnic voted against the EEOC’s 2015 decision finding that sexual orientation discrimination is gender discrimination under Title VII. She also voted against the EEOC’s 2014 pregnancy discrimination guidance.

U.S. Supreme Court: On January 31, 2017, Trump nominated Judge Neil Gorsuch to fill the open seat. According to an AFL-CIO blog article, Gorsuch “has ruled against protecting the health and safety of workers, made it harder to have discrimination-free workplaces and argued for corporations’ misconduct to be protected from correction by investors and consumers.”

Federal Right-to-Work/Right-to-Shirk Law: On February 1, 2017, Republicans in Congress announce plan to introduce Right-to-Work/ Right-to-Shirk Law and implement it nationwide. This would be a blow to the labor movement and the communities in which union members reside because unions would be required to provide representation to all employees in the unit regardless of whether they pay union dues. For more information from the AFL-CIO: Deceptive Right to Work Laws Hurt Everyone

U.S. Secretary of Labor: Trump initially nominated Andrew Puzder as U.S. Secretary of Labor. Mr. Puzder has repeatedly violated labor laws and is a vocal opponent of workers’ rights, describing the ideal worker as a machine: “They’re always polite, they always upsell, they never take a vacation, never show up late, there’s never a slip-and-fall, or an age, sex, or race discrimination case.” But, as of February 15, 2017, Puzder withdrew his nomination. Luckily, in his place, Trump picked former US Attorney Acosta as a nominee for U.S. Secretary of Labor on February 16, 2017. Richard Trumka, president of the AFL-CIO, has stated “in one day, we’ve gone from a fast-food chain C.E.O. [Puzder] who routinely violates labor law to a public servant with experience enforcing it.” View Article

SCOTUS to Decide Whether Title IX Compliance Requires Treating Transgender Students Consistent with Gender Identity

SCOTUS will hear oral arguments in Gloucester County School Board v. G.G. on March 28, 2017. The Department of Education issued a letter providing guidance that Title IX compliance requires schools to generally treat transgender students consistent with their gender identity … or schools could lose federal funding. The Gloucester County school board appealed of a lower court decision affirming transgender students’ access to facilities appropriate for their gender identity. Documents and update on the case can be found here: http://www.scotusblog.com/case-files/cases/gloucester-county-school-board-v-g-g/.

Latest development:

On March 6, 2017, the Supreme Court announced that it is sending the case to the Fourth Circuit Court of Appeals to be reconsidered in light of the Department of Justice and Education’s rescission of Title IX guidance that clarified protections for transgender students.

Texas Court Prohibits Implementation of ACA Protections for the Transgender Community and Women Seeking Abortions

On December 31, 2016, Judge Reed O’Connor of the United States District Court for the Northern District of Texas entered an injunction to apply nationwide in Franciscan Alliance v. Burwell, Case No. No. 7:16-cv-00108-O. The order prohibits the Department of Health and Human Services (HHS) from enforcing the portions of the nondiscrimination rule under ACA Sec. 1557 that prohibit discrimination on the basis of “gender identity” or “termination of pregnancy.” The court left untouched the portions of the rule that prohibit discrimination on the basis of disability, race, color, age, national origin, or sex other than gender identity. The decision can be found here: http://courthousenews.com/wp-content/uploads/2017/01/Texas-rule.pdf. On January 9, 2017, the ACLU filed a request for a formal ruling on their intervention in the case, which was apparently ignored by the Court earlier in the litigation, and a request for a stay pending the appeal they would file if intervention is granted. We will keep watch on any appeal of this decision.

EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions

In December 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang. “Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

Oregon Could Become First Fair Scheduling State

Oregon is teed up to consider statewide legislation that would require employers to end the abusive practice of unpaid on-call hours and “random scheduling” and require compensation for shifts canceled at the last minute. The bill for Fair Scheduling, proposed by Sen. Michael Dembrow in late September 2016, is supported by Commissioner Steve Novick and could go into effect after September 2017.

Visit http://pamplinmedia.com/but/239-news/327482-206939-oregon-could-become-first-fair-scheduling-state for more information and http://www.portlandoregon.gov/novick/article/568951 to read testimony from real people impacted by random and last minute scheduling.