Sailormen Inc., a Popeyes franchisee, reached a settlement with the EEOC as to a charge filed under the federal Pregnant Workers Fairness Act (PWFA).

According to the EEOC:

…upon learning that an employee was pregnant, Sailormen, Inc. fired her because it believed that she would need accommodations to perform her job duties. Such alleged conduct violates both Title VII and the PWFA, which requires employers, absent undue hardship, to provide reasonable accommodations to workers affected by pregnancy, childbirth or related medical conditions. 

As part of the settlement, Sailormen Inc. will implement new policies and training to ensure compliance with the PWFA. The employer will also provide monetary relief to the affected employee. https://www.eeoc.gov/newsroom/sailormen-inc-popeyes-conciliates-eeoc-pregnant-workers-fairness-act-charge (Oct. 11, 2024).

Commentary

The source states the defendant assumed the pregnant employee would need an accommodation to perform her job duties. It does not appear that the employee ever needed or even requested an accommodation.

Organizations should never presume that an employee, who is fulfilling the essential functions of a job, needs or will need an accommodation, if pregnant. Organizations that do so are viewed as creating discrimination liability based on an erroneous perception.

Here is a checklist of best practices for PWFA accommodations:

• Determine whether the employee is covered by the Pregnant Workers Fairness Act (PWFA). Employers with 15 or more employees are covered
• The PWFA requires a covered employer to provide a "reasonable accommodation" to a qualified employee's or applicant's known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an "undue hardship"
• Take all accommodation requests seriously and evaluate them on a case-by-case basis
• Employers must not:
• Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship – a significant difficulty or expense
• Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation
• Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee to keep working
• Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation)
• Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA
• Under the PWFA, in many instances, a discussion with the applicant or employee may be sufficient and supporting documentation will not be needed. Employers also should keep in mind that it may be difficult for a worker to obtain information from a health care professional early in pregnancy
• The PWFA differs from accommodations under the ADA, for example. An employer is not required to seek medical information from an employee's health care provider, and the employer may seek information from the employee's health care provider only under limited circumstances. An employer may not require the employee seeking the accommodation to be examined by a health care provider selected by the employer.
• Only seek documentation if it is reasonable under the circumstances for the employer to do so. It is not reasonable if:
  • The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform
  • The employer already knows about the limitation and the adjustment or change at work due to the limitation. For example, if the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, do not require a new doctor's note for every instance
  • The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing
  • The employee is lactating and needs modifications to pump at work or nurse during work hours

• Limit documentation when required to that which:
  • Confirms the physical or mental condition. This can be a modest or minor impediment or problem and does not need to be a medical diagnosis
  • Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition
  • Describes the adjustment or change at work that is needed due to the limitation (for example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time).
• Keep medical information confidential
• Once an accommodation has been determined, document it (i.e., what it is, start date, and any other details). Likewise, document any denial of a reasonable accommodation
• Inform the supervisors and managers of the employee so they can implement the accommodation
• Maintain all documentation pertaining to the request for reasonable accommodation
• Should the accommodation not be helpful, managers should be trained to alert those who granted the accommodation so the interactive process may be continued