On January 20, 2014, Mayor Michael Nutter signed an amendment to Philadelphia’s Fair Practices Ordinance banning discrimination based upon pregnancy, childbirth, or a related medical condition and imposing a new requirement that employers must make reasonable workplace accommodations unless doing so would impose undue hardship on the operation of the employers’ business.
Prior to this amendment, reasonable accommodations were only required if the pregnant worker was “disabled.” Under the new law, the worker need not show that they are “disabled,” only that they are “affected by pregnancy.” The ordinance identifies several possible accommodations, including restroom breaks, periodic rest for those jobs that require standing for long periods of time, special assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position and job restructuring.
The reasonable accommodation must be made provided (1) it is requested; and (2) the accommodation will not cause an undue hardship on the employer. In determining “undue hardship,” four factors are considered:
- The nature and cost of the accommodations
- The overall financial resources of the facility where the accommodation is requested, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operations of the employer
- The overall financial resources of the employer, specifically the number of employees and the number, type, and location of its facilities
- The type of operations, including the structure of the workforce
The ordinance provides the same remedies as those for other unlawful employment practices, including injunctive or other equitable relief, compensatory damages, punitive damages, and reasonable attorneys’ fees.
The law specifies that “it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of the job.” Which may provide some relief to employers in those cases where the employee, even with the accommodation, cannot perform their job duties. However, job restructuring and reassignment are among the accommodations employers must provide (unless those accommodations impose an undue hardship).
Philadelphia is not alone in enacting heightened protection for pregnancy workers. Similar laws have been enacted in Maryland, New Jersey, California and New York City. In February 2014, Representatives Mark Cohen of Philadelphia and Mark Painter of Montgomery County introduces the Pennsylvania House Bill 1892, the Pennsylvania Pregnant Workers Fairness Act, which is modeled after the Philadelphia ordinance. Although Senator Bob Casey, introduced similar legislation at the federal level, that legislation stalled in committee last year.
Employers are required to post a notice conspicuously in an area accessible to employees, by April 20, 2014. The poster is to be in a form and manner to be determined by the Philadelphia Commission on Human Relations. As of today, the PCHR has not issued the poster.
Employers are encouraged to review their employee handbooks and reasonable accommodation policies in light of the new law. If you have any questions or would like more information on these or other employment issues, please contact Julie Kinkopf, Esquire at 610-660-7786 or firstname.lastname@example.org.
Julie Kinkopf, Esquire is principal of Kinkopf Law LLC and is an accomplished attorney who has represented employers for over 15 years. Ms. Kinkopf helps businesses develop sound employment practices and provides training to supervisors and employees designed to avoid litigation and government audits. She also represents employers before various governmental agencies as well as in state and federal courts in post-employment litigation, including discrimination, retaliation, pay disputes and non-compete/trade secret matters. More information may be found at www.kinkopflawfirm.com or www.linkedin.com/in/juliekinkopf/