Is the rule requiring members of a majority demographic group to show additional “background circumstances” to support their Title VII discrimination claims itself discriminatory? The 6th Circuit’s analysis of the “background circumstances” rule in its recent decision in Ames v. Ohio Department of Youth Services[1] raised that dilemma for at least one jurist.

In Ames, the plaintiff, a heterosexual woman and agency administrator, applied but was not selected for a promotion to bureau chief. Only four days later, the agency also demoted plaintiff and replaced her with a gay man. Several months after her demotion, a gay woman was selected for the bureau chief position for which plaintiff had applied and had been rejected. The plaintiff filed suit claiming she was discriminated against because of her sex and her sexual orientation. The district court granted of summary judgment in favor of the agency.

Affirming the district court’s grant of summary judgment, the 6th Circuit explained that because the plaintiff was “heterosexual . . . she must make a showing in addition to the usual ones for establishing a prima-facie case,”[2] and that she “must show ‘background circumstances’ to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”[3]

The majority implicitly recognized that the facts alleged by plaintiff sufficiently supported a standard prima facie case of discrimination: she was demoted and denied a position and replaced by or rejected in favor of a gay individual. Her claim failed, however, because she did not “mak[e] a showing with evidence that a member of the relevant minority group . . . made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the [agency] against members of the majority group.”[4] In other words, she failed to present those additional background circumstances required for reverse discrimination claims.

Concurring in the majority’s finding that the plaintiff could not demonstrate the agency’s legitimate, non-discriminatory reason was pretextual, Judge Raymond Kethledge expressed his disfavor of the background circumstances rule. Notably, Judge Kethledge’s disagreement was not with the application of the rule, but with its very existence. 

Reasoning that the plain language of Title VII itself should be dispositive of the issue, Judge Kethledge explained that “Title VII . . . bars employment discrimination against ‘any individual’ — itself a phrase that is entirely clear — ‘because of such individual’s . . . sex.’”[5] Yet, the background circumstances rule “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.”[6]

Using the instant case as an illustration of the apparent disparities caused by the rule, Judge Kethledge explained that no one disputed the plaintiff made a prima facie showing of discrimination based on her sexual orientation and, had plaintiff been a gay person, this would have been sufficient. Yet, because plaintiff was not a gay person, her claim was treated differently — requiring an additional requisite showing that she would not otherwise have to make but for her sexual orientation. The result, as Judge Kethledge noted, was that plaintiff was denied a jury trial on her claim solely because of the application of the “background circumstances” rule (i.e., solely because of her membership in a majority group).

Judge Kethledge described the background circumstances rule as “not a gloss upon the 1964 Act, but a deep scratch across its surface.”[7] Judge Kethledge explained this was because Title VII expressly protects any individual, but the application of the background circumstances rule inherently treats some individuals worse than others or “discriminates” against them based on their membership in a particular protected group — something the “statute forbids.”[8] He expressed hope that the Supreme Court would address the issue, noting the current split between the circuits on the issue with the 6th, 7th, 8th, 10th and D.C. Circuits having adopted the background circumstances rule and the 3rd and 11th Circuits having rejected it. In Judge Kethledge’s opinion, “[O]ur court and others have lost their bearings in adopting this rule.”[9]

The “background circumstances” rule was first adopted by the D.C. Circuit in Parker v. Baltimore & O.R. Co.,[10] a reverse race and sex discrimination claim brought by a white male. The court described its position as dealing with “more difficult problems . . . none more difficult than the delicate balance of interests necessary in adjudicating the claims of ‘reverse’ discrimination that sometimes accompany an employer’s efforts to improve the record of his hiring practices.”[11]

Considering the plaintiff’s membership in several majority demographic groups, the court determined that a “further adjustment” to the McDonnell-Douglas burden shifting standard had to be made. The court explained this was because the original McDonnell-Douglas standard “required the plaintiff to show ‘that he belongs to a [] minority.’” In creating the background circumstances rule, the court recognized that “[w]hites [or other majority groups] are also [] protected [] under Title VII, but it defie[d] common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.’”[12] Thus, the court held that plaintiffs who belong to majority groups may only rely on the McDonnell-Douglas criteria to prove a prima facie case “when background circumstances support the suspicion that that the defendant is that unusual employer who discriminates against the majority.”[13]

This question is, perhaps, ripe for the United States Supreme Court. Considering the outward societal factors that undoubtedly played a role in the adoption of the background circumstances rule, it seems any subsequent review of the rule by the Supreme Court will necessarily include a lengthy and in-depth analysis of past and current social considerations and the history and purpose of Title VII. Regardless, as it currently stands, plaintiffs belonging to majority groups in the 6th and several other Circuits, face the battle of proving additional, background circumstances in order to maintain their discrimination claims.

Sarah Belchic is an associate in Littler Mendelson PC’s Nashville office who focuses her practice on labor and employment law matters. Sarah previously externed for the Equal Employment Opportunity Commission Hearing Unit in the Memphis Field Office, working closely with the administrative law judges. She can be reached at SBelchic@littler.com.

Eric Stevens is a shareholder in Littler Mendelson PC’s Nashville office with over 40 years of employment and general civil litigation experience, providing common-sense advice and representing employers in administrative and employment litigation, with a focus in the areas of healthcare and financial institutions. Stevens is also a Tennessee Supreme Court Rule 31 listed civil mediator. He can be reached at EStevens@littler.com.

The National Coalition of 100 Black Women, Chattanooga Chapter, will host a live public forum on Facebook this Thursday at 7 p.m. EST to hear from local candidates for Criminal Court judge, Circuit Court judge, and School Board Districts 1, 2,4,7, 10 and 11. Questions welcome.

In Stericycle Inc.[1] (“Stericycle” or “the Company”), the National Labor Relations Board (“Board”) “adopt[ed] a new legal standard to decide whether an employer’s work rule that does not expressly restrict employees’ protected concerted activity under Section 7 of the National Labor Relations Act (“Act”) is facially unlawful under Section 8(a)(1) of the Act.”[2] In doing so, the Board overturned the so-called “employer friendly” standard adopted in Boeing Co.[3] which will have a significant impact on employer rules and policies that regulate conduct in the workplace.

Fact Summary

The underlying unfair labor practice charge alleged certain policies contained in a handbook issued to employees at Stericycle’s Morgantown, West Virginia facility, specifically the policies governing “Personal Conduct,” “Conflict of Interest” and “Confidentiality of Harassment Complaints,” violated Section 8(a)(1) of the Act.[4]

The rules at issue state, in pertinent part[5]:

Personal Conduct Policy

In order to protect everyone’s rights and safety, it is the Company’s policy to implement certain rules and regulations regarding your behavior as a team member. Conduct that maliciously harms or intends to harm the business reputation of Stericycle will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient operations. Failure to conduct yourself in an appropriate manner can lead to corrective action up to and including termination. The following are some examples of infractions, which could be grounds for corrective action up to and including termination, however, this list is not all-inclusive.

Conflicts of Interest

Stericycle will not retain a team member who directly or indirectly engages in the following:

• An activity that constitutes a conflict of interest or adversely reflects upon the integrity of the Company or its management.
• An activity in which a team member obtains financial gain due to his/her association with the Company.
• An activity, which by its nature, detracts from the ability of the team member to fulfill his/her obligation to the Company.

Confidentiality of Harassment Complaints

The employee handbook contained a detailed policy prohibiting harassment of all types, including, but not limited to, sexual harassment. In a separate section, entitled “Retaliation,” the handbook provided:
…
All complaints will be promptly investigated. All parties involved in the investigation will keep complaints and the terms of their resolution confidential to the fullest extent practicable.

On Nov. 10, 2016, an administrative law judge (“ALJ”) issued a decision concluding, among other things, that the Company “implemented and maintained rules in its 2015 employee handbook relating to personal conduct, conflicts of interest and confidentiality of harassment complaints in violation of Section 8(a)(1) of the National Labor Relations Act[.]”[6] Following an appeal of the ALJ’s decision, the Board remanded the case for the ALJ to reconsider his decision in light of the newly announced standard set forth in Boeing Co.[7] On remand, the ALJ discussed the Board’s ruling in Boeing Co.:

Specifically, the Board held that, when analyzing a facially neutral policy, rule or handbook provision that would potentially interfere with the exercise of rights under the Act, it will evaluate two things: (i) the nature and extent of the potential impact on rights under the Act, and (ii) legitimate justifications associated with the rule. Boeing, 365 NLRB No. 154, slip op. at 3. In conducting this evaluation, the Board seeks to balance the employer’s asserted business justifications for the policy and the extent to which the policy interferes with employee rights under the Act.

The Board also announced that it would evaluate the work rules based on one of three categories: Category 1 — lawful rules, as reasonably interpreted, that do not prohibit or interfere with the exercise of protected rights or the potential adverse impact on protected rights is outweighed by business justifications; Category 2 — rules warranting individualized scrutiny as to whether they would prohibit or interfere with protected rights, and if so, whether any adverse impact on protected conduct is outweighed by legitimate justifications, and Category 3 — rules that unlawfully prohibit or limit protected conduct, which impact is not outweighed by business justifications. Id. at 3–4.

The ALJ proceeded to analyze the policies in light of the Boeing factors and placed them in “Category 2,” but found that all three violated the Act as written, since the policies could reasonably be interpreted by employees as chilling their Section 7 rights which outweighed the asserted business justification for the rules.[8] For example, the ALJ found that the Personal Conduct and Conflict of Interest Policies were “so broad, they could be reasonably interpreted to prohibit communications among employees regarding the terms and conditions of their employment, thus interfering with core Section 7 activity. . . such as participating in a strike or some other form of protest of working conditions.”[9] With respect to the policy addressing “Confidentiality of Harassment Complaints,” the ALJ found it was “excessively and unjustifiably broad with the potential to infringe upon protected communications between employees after an investigation concludes.”[10] An appeal followed to the Board.  

The Board’s Opinion.[11]

On review, the Board rejected the approach taken in Boeing Co., in favor of an approach “that builds on and revises the Lutheran Heritage standard,”[12] since the former approach “permits employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act.”[13] In addition, the Board stated that the Boeing standard failed to account for the “economic dependency of employees on their employers” and their reasonable inclination “to construe an ambiguous work rule to prohibit statutorily protected activities and to avoid the risk of violating the rule by engaging in such activity.”[14] In sum, the Board determined that the Boeing standard “gives too little weight to the burden a work rule could impose on employees’ Section 7 rights” and “too much weight to employer interests.”[15] Finally, the Board concluded that the Boeing standard encouraged employers to draft overbroad work rules instead of “narrowly tailor[ing] . . . rules to only promote . . . legitimate and substantial business interests while avoiding burdening employee rights.”[16]

After discussing the reasons for rejecting the Boeing standard, the Board set forth its new standard for evaluating employer work rules[17]:

As under Lutheran Heritage, our standard requires the general counsel to prove that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights. We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the general counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable. If the general counsel carries her burden, the rule is presumptively unlawful, but the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.

In addition, the Board stated that its new standard will be applied on a “case-by-case” basis “which examines the specific language of particular rules and the employer interests actually invoked to justify them”[18] and would apply “retroactively” to all pending cases.[19]

Take Aways

The Board’s decision in Stericycle will require employers to review all work rules, since many rules presumptively valid or defensible under the former Boeing standard will be open to challenge under the new standard. Under the new standard, where an employee could reasonably interpret a work rule to have a coercive meaning, even if a contrary, noncoercive interpretation of the rule is also reasonable, a presumption arises that the rule is unlawful. An employer may only rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule, a likely uphill battle given the current employee-friendly Board majority. Work rules likely to be found unlawful under the new standard include workplace civility rules, loitering rules, rules prohibiting unlawful strikes, work stoppages and slowdowns, and restrictions on video and/or cell phone recording.”[20]

Employers must review existing work rules and possibly withdraw those that reasonably implicate Section 7 rights and are not supported by a legitimate and substantial business interest. Moreover, employers should also add a disclaimer to their handbook to note that the policies are not intended to interfere with employees’ Section 7 rights.[21]

Greg Grisham is a partner in the Memphis office of Fisher & Phillips LLP and focuses his practice on counseling and representing employers in all aspects of labor and employment law. He may be reached at ggrisham@fisherphillips.com or 901-333-2076.  

1. Introduction

When an employer unilaterally transfers an employee to another department, division or assignment, such transfer does not automatically constitute an “adverse employment action” under Title VII of the Civil Rights Act of 1964 (“Title VII”). In Muldrow v. City of St. Louis, Missouri,[1] the U.S. Court of Appeals for the 8th Circuit clarified the circumstances under which a transfer or reassignment (or a denial of a transfer) might, in fact, constitute an adverse action. Under Title VII, one of the elements an aggrieved employee must demonstrate to prove his or her prima facie case of discrimination and/or retaliation is that he or she was subjected to an “adverse employment action” (e.g., termination, demotion, reduction in pay, etc.). The Muldrow court ventured into a previously gray area to determine the limits of what constitutes an adverse action. Of interest to Tennessee practitioners is the fact that, following the 8th Circuit’s decision, the U.S. Supreme Court granted certiorari as to the following question: “Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?”[2] The case was argued before the Supreme Court in December 2023, and it currently remains pending.

2. Case Summary

In the instant case, police Sgt. Jatonya Clayborn Muldrow was employed as a patrol detective with the St. Louis Police Department (“SLPD,” or the “Department”).[3] In 2008, she was transferred to the Department’s Intelligence Division, which granted her certain FBI clearances and privileges. In 2017, the interim police commissioner appointed a new commander of intelligence, Cpt. Michael Deeba, who subsequently transferred four officers — including Sgt. Muldrow — out of the Intelligence Division to the Fifth Police District.[4] This transfer resulted in a variety of changes to her position and duties, including her: (1) schedule; (2) access to certain patrol areas; and (3) ability to gain significant overtime work. Id. Additionally, Sgt. Muldrow had to return her unmarked FBI vehicle, and she had to wear a standard police uniform (rather than plainclothes) moving forward.[5]

As a result, in 2017, Sgt. Muldrow filed a charge of discrimination with the Missouri Commission on Human Rights, alleging she had been discriminated against because of her gender. Following issuance of a right-to-sue letter, Sgt. Muldrow was transferred back to the Intelligence Division. Nevertheless, Sgt. Muldrow filed a lawsuit in Missouri state court, alleging both gender discrimination and retaliation for reporting certain acts of discrimination. The Department removed the case to federal district court and ultimately filed a motion for summary judgment as to Sgt. Muldrow’s claims. The District Court granted the Department’s motion, following which Sgt. Muldrow appealed to the 8th Circuit.

3. The Scope of an “Adverse Employment Action.”

To prove a prima facie case of gender discrimination, a plaintiff must demonstrate each of the following elements: (1) she is a member of a protected class; (2) she was qualified to perform her job; (3) she experienced an adverse employment action; and (4) such treatment was different from that of similarly situated male employees.[6] Digging deeper, an adverse employment action occurs when there “is a tangible change in working conditions that produces a material employment disadvantage.”[7] Importantly, the 8th Circuit reiterated that “minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.”[8]

Sgt. Muldrow alleged that her transfer from the Intelligence Division to the Fifth District constituted an adverse employment action “because her Fifth District work was more administrative and less prestigious than that of the Intelligence Division, meaning that it was more akin to the basic entry level work of being a police officer or sergeant.”[9] In holding for the Department, however, the 8th Circuit relied upon the following facts related to her transfer: (1) her pay and rank remained the same; (2) she was given a supervisory role in her new position; (3) she was responsible for investigating violent crimes; (4) she admitted that the transfer did not harm her future career prospects; and (5) even though she lost the opportunity to receive FBI-related overtime, she still was eligible for overtime pay, but elected not to take advantage of such opportunities.[10]

Ultimately, the court reiterated that “an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.”[11] Instead, “an employer is not tethered to every whim of its employees.”[12] Consequently, were an employer to be subjected to a possible discrimination claim each time an employee is transferred, it would have no opportunity to run its business as it deems fit. Moreover, Sgt. Muldrow failed to demonstrate that any similarly situated male employees were treated differently than she was, particularly given the fact that two male employees also were transferred following Cpt. Deeba’s appointment over the Intelligence Division.

4. What’s Next?

Following the Supreme Court’s grant of certiarori, oral argument occurred on Dec. 6, 2023. And while the court maintains a significant conservative majority, surprisingly, most court observers suggest that a majority of the justices seemed to lean in Muldrow’s direction. In fact, while on the D.C. Circuit, Justice Brett Kavanaugh — a conservative stalwart — wrote a concurring opinion in which he stated that “all discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.”[13] Thus, while the current makeup of the court would suggest a decision that might lean in the employer’s favor, generally, it will not be a surprise if the 8th Circuit’s decision is overturned on appeal. If that happens, a subsequent rise in actions by employees alleging discriminatory transfer will likely follow suit.

Scott Simmons is a member in the Labor & Employment Department in the Chattanooga office of Miller & Martin PLLC. He may be reached directly at Scott.Simmons@millermartin.com.

Maternity leave has long been a familiar concept to employers and employees alike. More recently, that concept has been expanded to “parental leave” available to parents generally. Employers have maintained leave policies providing employees with time away from work related to childbirth, and most employers understand the applicable federal and state leave laws that dictate what is required of those policies. The application of those policies in a legally compliant manner is a relatively straightforward matter of confirming employee eligibility, qualifying circumstances for leave and the provision of job-protected leave meeting at least the baseline statutory requirements. Circumstances become more challenging, however, when an employee’s pregnancy impacts their ability to perform their usual job responsibilities.

Pregnancy, by itself, does not constitute a disability under the Americans with Disabilities Act (ADA).[1] Thus, the ADA’s reasonable accommodation obligations do not apply to pregnancy absent the employee being a qualified individual with a disability. And while an employee affected by pregnancy, childbirth or related medical conditions is protected from unlawful sex discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (Title VII), Title VII does not afford an employee the right to an accommodation for limitations arising from pregnancy, childbirth or a related medical condition absent evidence that a similarly-situated non-pregnant employee received the same accommodation.[2]

This “gap” in accommodation protections for pregnant employees came to the forefront in January 2012 with the publication of an op-ed in the New York Times that highlighted and emphasized the need for an accommodation structure to bridge that gap in federal legal protections for workers experiencing pregnancy-related limitations.[3] In response, congressmembers from New York and California introduced the “Pregnant Workers Fairness Act” (PWFA) in the House of Representatives in May 2012. Over the course of the next 10 years, an advocacy group called A Better Balance spearheaded a campaign to garner support for the passage of the PWFA at the state and local level. By 2021, 25 states had passed state-level pregnancy accommodation laws similar to the proposed federal bill, including the Tennessee Pregnant Workers Fairness Act (TN PWFA), which took effect on October 1, 2020.[4] Then, on Dec. 29, 2022, President Biden signed the PWFA into law, which went into effect on June 27, 2023.

This article summarizes the newly enacted federal PWFA, highlights the similarities and differences with the TN PWFA, discusses key distinctions between the federal PWFA and the ADA, and then situates those pregnancy accommodation requirements in the context of other federal and state accommodation and leave laws. 

The Federal PWFA

The PWFA requires employers to provide reasonable accommodations to qualified employees and applicants[5] with known limitations related to pregnancy, childbirth or related medical conditions, unless the accommodation will cause the employer an undue hardship. On Aug. 11, 2023, the EEOC issued proposed rules to implement the PWFA, which include proposed regulations and the EEOC’s interpretive guidance that will guide the EEOC’s enforcement of the PWFA.[6]

The PWFA specifies that an employer may not require a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided to accommodate known limitations related to the pregnancy, childbirth or related medical conditions.[7] In other words, an employer cannot default to requiring an employee to take leave for pregnancy-related conditions if another reasonable accommodation is available that would not cause the employer undue hardship. Instead, an employer must engage in the familiar interactive process required under the ADA to determine whether a reasonable accommodation exists that would enable the employee to perform the essential functions of their position.[8]

If an employee requests leave due to a pregnancy-related limitation, the employee is entitled to use any leave the employee has a right to under an employer’s policy, the FMLA and/or another state or local law (such as the Tennessee Parental Leave Act). If an employee has exhausted the leave available to them under the employer’s policies, the FMLA or other state laws and requests additional leave as an accommodation due to a pregnancy-related limitation, the proposed regulations require an employer to consider providing additional paid or unpaid leave as an accommodation.[9]

In determining whether an accommodation other than the employee’s requested accommodation is available, an employer may request documentation to support the employee’s requested accommodation if “requiring the supporting documentation is reasonable under the circumstances for the [employer] to determine whether to provide the accommodation.”[10] The proposed regulations define “reasonable documentation” as documentation that describes or confirms (1) the employee’s physical or mental condition; (2) that the limitation is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and (3) that a change or adjustment at work is needed due to the limitation.

The EEOC identifies several broad situations in which requiring supporting documentation is not considered reasonable: (1) the employee’s limitation and need for accommodation are obvious and confirmed through self-attestation; (2) the employee has already provided sufficient information to substantiate the limitation and need for accommodation; and (3) the employee’s limitation is related to lactation or pumping. Further, the proposed regulations specify that it is unreasonable to require an employee to submit documentation in support of the following accommodations, which the EEOC dictates are considered reasonable and do not impose an undue hardship in “virtually all cases”: (1) allowing an employee to carry and drink water all day; (2) allowing the employee to take additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink. Employers may not require supporting documentation for these requests.[11]

The Tennessee PWFA

The TN PWFA took effect on Oct. 1, 2020, and implemented many of the requirements found in the new federal PWFA. Like the federal PWFA, the TN PWFA requires employers with 15 or more employees to make reasonable accommodations for employees with medical needs arising from pregnancy, childbirth and related medical conditions. The TN PWFA also provides that, absent undue hardship, an employer may not require an employee to take leave because of medical needs arising from pregnancy, childbirth or related medical conditions if another reasonable accommodation can be provided.[12] Further, the TN PWFA prohibits an employer from taking any adverse action against an employee for requesting or using a reasonable accommodation under these circumstances, including, but not limited to, “counting an absence related to pregnancy under no fault attendance policies.” Tenn. Code Ann. § 50-10-103(b)(3).

The protections afforded under the TN PWFA, however, are not as extensive as those provided under the federal PWFA. For example, the TN PWFA specifies that employers are not required to “[c]reate a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee.” Tenn. Code Ann. § 50-10-103(a)(3). While the federal PWFA does not require employers to create a new position for an employee with a pregnancy-related limitation, as discussed in more depth below, it does obligate employers to temporarily suspend an employee’s essential job functions if necessary to accommodate the employee unless doing so would impose an undue hardship.[13]

Additionally, the TN PWFA specifies that an employer is not required to “[h]ire new employees that the employer would not have otherwise hired.” Tenn. Code Ann. § 50-10-103(a)(1). The federal PWFA, however, requires employers to consider “whether there are other employees, temporary employees or third parties who can perform or be hired to perform” any essential function an employee needs temporarily suspended due to pregnancy-related limitations.[14]

Further, the federal PWFA broadens an employer’s obligation to provide leave to an employee with a pregnancy-related limitation. Per the EEOC, if an employee requests leave from work due to pregnancy-related limitations under the federal PWFA, an employer “must consider providing leave as a reasonable accommodation under the PWFA, even if the employee is not eligible for leave under the employer’s leave policy or the employee has exhausted the leave the covered entity provides as a benefit (including leave exhausted under a workers’ compensation program, the FMLA, or similar State or local laws).”[15] No such requirement is included in the TN PWFA.

The PWFA and the ADA

The PWFA explicitly adopts much of its structure from the ADA. Like the ADA, the PWFA covers employers with 15 or more employees, and the PWFA requires the use of the interactive process to determine an appropriate reasonable accommodation.[16]

The PWFA, however, only applies to employees with “known limitations” related to pregnancy, childbirth or related medical conditions, as opposed to employees with a “disability” as defined under the ADA. The proposed regulations define “known limitations” as pregnancy-related physical or mental condition that an employee or representative of the employee has communicated to the employer.[17] Notably, the PWFA specifies that a “known limitation” is not intended to meet the definition of a disability under the ADA.[18] Unlike the ADA, an employee’s pregnancy-related limitation is covered under the PWFA regardless of the level of severity of the limitation. The proposed rules specify that a “known limitation” is intended to encompass modest, minor and episodic pregnancy-related conditions, which include accommodations aimed at maintaining a healthy, uncomplicated pregnancy.[19]

Additionally, like the ADA, a “qualified individual” under the PWFA is defined as an employee or applicant who can perform the essential functions of a position with or without reasonable accommodation. The PWFA, however, also provides that an employee who cannot perform an essential function is considered “qualified” if (1) the inability to perform the essential function is for a temporary period; (2) the employee will be able to perform the essential function in the near future; and (3) the employer can reasonably accommodate the employee’s inability to perform the essential function.[20]  

The term “temporary” is defined in the proposed regulations as “lasting for a limited time, not permanent and may extend beyond ‘in the near future.’”[21] The EEOC defines “in the near future” as meaning generally 40 weeks from the start of the temporary suspension of the employee’s essential job function(s), which is based on the time of a full-term pregnancy.[22] However, “the 40 weeks would restart once the pregnancy is over and the worker returns to work after leave could be applied during pregnancy.”[23] In other words, the suspension of an employee’s essential job function is considered “temporary” (i.e., not permanent) for purposes of the PWFA if the suspension does not last longer than 40 weeks before childbirth and 40 weeks after an employee returns from leave to recover from childbirth.

Further, the proposed regulations also specify that leave does not count as time when an essential function is suspended and thus is not relevant to the second prong of the definition of qualified noted above.[24] Rather, an employee is “qualified” to receive leave as a reasonable accommodation if, at the end of the leave period, the employee (1) will be able to perform the essential job functions of their position with or without reasonable accommodation or (2) the employee is able to return to work but requires that one or more of their essential job functions be suspended for a temporary period, as discussed above.[25]

The PWFA and the FMLA

As a refresher, under the Family Medical Leave Act (FMLA), a covered employee is entitled to receive up to 12 weeks of unpaid leave for a serious health condition, the birth of a child and bonding with a newborn within one year of birth.[26] The FMLA provides job-protected leave to qualifying employees with a “serious health condition,” which encompasses physical or mental conditions that require multiple treatments and intermittent absences. Further, the FMLA protects an employee’s right to be absent from work for a designated period of time, while the ADA is designed to provide a mechanism for addressing an employee’s disability in a way that allows the employee to remain on the job.

The PWFA provides a hybrid accommodation structure that prioritizes accommodations that enable an employee to remain on the job while preserving the employee’s the ability to take leave, when necessary, due to “known limitations” related to pregnancy, childbirth or related medical conditions. Notably, if an employee requests leave as an accommodation or there is no other reasonable accommodation that does not impose an undue hardship, the EEOC’s proposed regulations require an employer to consider providing paid or unpaid leave as an accommodation for a pregnancy-related limitation, even if the employee has exhausted the leave provided under the employer’s policies, the FMLA or other state laws.

The PWFA and the Tennessee Parental Leave Act

The Tennessee Parental Leave Act applies to employers with 100 or more full-time employees at one jobsite and covers full-time employees who have worked for the employer for at least 12 consecutive months. The Tennessee Parental Leave Act provides that covered employees are entitled to receive up to four months of unpaid leave for pregnancy, childbirth, adoption and nursing.[27] Further, if an employer discovers that an employee used their Tennessee Parental Leave Act leave to pursue other employment opportunities or worked for another employer during the leave period, the employer is not required to reinstate the employee.[28] In comparison, the FMLA’s regulations prohibit an employer from refusing reinstatement on this basis unless the FMLA leave was “fraudulently obtained” or the employer has a uniformly-applied policy prohibiting outside or supplemental employment in general, which the employer may then continue to apply to an employee on FMLA leave.[29] Neither the PWFA nor the proposed regulations specify or address a similar limitation to reinstatement.

As the proposed PWFA regulations explain, if an employee has a right to leave under an employer’s policy, the FMLA and/or another state or local law (such as the Tennessee Parental Leave Act), the employee is entitled to use of that leave regardless of whether they request leave as a reasonable accommodation under the PWFA. If an employee requires leave beyond what they are entitled to under those laws or policies, the employee must request leave as a reasonable accommodation.[30]

Given this, it is the EEOC’s position that an employer may not deny an employee’s request for an accommodation of leave due to a pregnancy-related limitation solely on the basis that the employee has already exhausted their entitlement to leave under the FMLA, an employer’s policy or another state or local law (such as the Tennessee Parental Leave Act).[31] Further, while an employer may deny a request for leave if doing so would impose an undue hardship, the employer must provide leave up to the point that it would cause the employer an undue hardship.[32] In making this undue hardship determination, “an employer may consider leave that the employee has already used under, for example, the FMLA.”[33]

For example, if an employee is covered under the FMLA and has not used any of their FMLA leave in the 12 months preceding the leave request, the employer must allow the employee to use the 12 weeks of unpaid leave provided under the FMLA for pregnancy-related limitations. If the employee is covered under the Tennessee Parental Leave Act, the employee is entitled to up to four months of leave for pregnancy, childbirth, infant care or adoption. Thus, an employee who is covered under both the FMLA and the Tennessee Parental Leave Act is entitled to a minimum of four months of unpaid leave.

However, the EEOC’s proposed PWFA regulations require an employer to consider additional leave as a reasonable accommodation beyond any period of leave an employee is already entitled to receive. Thus, if the employee requests additional leave beyond this four-month period, the PWFA requires the employer to engage in the interactive process to evaluate whether the additional requested leave would impose an undue hardship. The PWFA does not specify a maximum amount of leave an employee is entitled to receive, instead relying on the employer and employee to engage in the interactive process to determine how much leave the employee should be afforded.

Key Takeaways for Navigating Leave Requests Covered by the PWFA

The PWFA is aimed at enabling employees experiencing pregnancy-related limitations to quickly and efficiently obtain reasonable accommodations that will enable them to continue working, when possible. Accordingly, if an employee communicates to an employer that they require an accommodation due to a limitation arising from pregnancy, childbirth or a related medical condition and requests an accommodation other than leave, the PWFA requires the employer to engage in the interactive process with the employee to determine whether an accommodation exists that would enable the employee to continue working without causing undue hardship to the employer.

Leave is Not the Preferred Accommodation. Notably, an employer can only choose leave as a reasonable accommodation if the employee requests leave or there is no other reasonable accommodation that would enable the employee to continue working without causing undue hardship. This includes any interim during which the employer and employee are engaged in the interactive process and still determining what reasonable accommodation is appropriate.[34] Thus, an employer cannot default to putting an employee on leave while the interactive process is underway.

Employee Leave Requests Should First be Considered Under Leave Policies. If an employee requests leave due to a pregnancy-related limitation, the employer must first determine whether the employee has a right to leave under the employer’s policy, the FMLA, and/or another state or local laws (such as the Tennessee Parental Leave Act), as the employee is entitled to use of that leave regardless of whether they request leave as a reasonable accommodation under the PWFA.

Accommodation May Require Additional Leave. If an employee requires leave beyond what they are entitled to under those laws or policies, the request for additional leave constitutes a request for a reasonable accommodation.[35] When evaluating whether to grant an employee additional leave as a reasonable accommodation, the employer must engage in the interactive process to determine whether an alternative to leave is available if granting additional leave would cause an undue hardship. For example, the employer may consider providing additional rest breaks, a reduced work schedule, intermittent leave, remote work or the suspension of some of the employee’s essential job functions. As with the ADA, an employer may consider leave that the employee has already used under other policies or laws (such as the FMLA) in determining whether leave under the PWFA causes an undue hardship.[36]

Limitations on Requests for Supporting Information. Finally, the PWFA does not require an employer to obtain supporting documentation to support an employee’s request for an accommodation, and in fact prohibits it where an employee is seeking the following accommodations: (1) allowing an employee to carry and drink water all day; (2) allowing the employee to take additional restroom breaks; (3) allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and (4) allowing an employee breaks, as needed, to eat and drink.

Further, the proposed regulations emphasize the importance of evaluating the reasonableness of requiring supporting documentation. For example, the EEOC explains that while requiring an obviously pregnant employee to submit documentation regarding the amount of leave the employee anticipates needing to recover from childbirth is reasonable, requiring the employee to submit documentation proving that the employee is pregnant is not reasonable.[37]

Jeb Gerth is a member of the firm in Epstein Becker Green’s Employment, Labor & Workforce Development practice. Since 2005, Gerth has advised companies on employment compliance and represented them in employment disputes. In addition to his employment practice, Gerth regularly advises on benefits issues arising under ERISA and represents companies and plan fiduciaries in ERISA disputes. 

Maggie Stringer is an associate in Epstein Becker Green’s Memphis office. Her background in litigating complex business disputes and defending employers in all types of employment-related litigation enables her to craft a strategy for the successful resolution of each client’s matter. She regularly conducts internal workplace investigations and routinely represents clients in litigation involving employment or commercial claims impacting their businesses.

[1] See 902.2 Impairment, EEOCCM § 902.2 (“Although other statutes may use the term “disability” when referring to pregnancy, pregnancy is not a “disability” for purposes of the ADA. Note, however, that allegations of employment discrimination based on pregnancy are covered by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.”); see also Spees v. James Marine, Inc., 617 F.3d 380, 396 (6th Cir. 2010) (“[Plaintiff] acknowledges that pregnancy, by itself, does not constitute a disability under the ADA and thus cannot form the basis of a regarded-as claim. This concession comports with the unanimous holdings of the federal courts that have addressed the issue.”).

The State Bar of California yesterday warned that its general fund will become insolvent in 2025 without an attorney licensing fee increase, reports Reuters. Next year, California's 250,000 attorneys will pay an additional $114 a year on top of the current $404 annual licensing fee to cover an expected $24 million deficit in the state bar’s core functions, bar staff told the organization's board of trustees. The fees will go towards technology and up to 77 new staff positions to investigate attorney complaints. Last April, the auditor of the State of California identified growing financial shortfalls at the largest mandatory state bar association in the U.S. and concluded the organization should do more long-range financial planning.

The TBA YLD's Rookie's Guide series continues on March 28 at noon CDT with Memphis attorney Danielle Woods. In this installment of the series focused on estate planning, attendees will be exposed to estate planning essentials from will drafting and trust creation to asset protection. Learn more about the program and register.

Carroll County lawyer Robert Taylor Keeton Jr., died Feb. 24 at age 87. Keeton earned his bachelor's degree from Memphis State University (now the University of Memphis) and his law degree from the University of Tennessee College of Law. He served as president of the Tennessee Trial Lawyers Association from 1981-1982 and president of the Tennessee County Attorneys Association from 2001-2002. Keeton was also a member of the American Board of Trial Advocates, the Carroll County Bar Association, American Bar Association, Tennessee Municipal Attorneys Association, American Association of Trial Attorneys and was awarded the Huntingdon Pinnacle of Excellence Award. A memorial service will be held March 2 at 11 a.m. CST at Bruceton First United Methodist Church, 148 Pine St. N, Bruceton 38317. In lieu of flowers, donations can be made to the Shriners Hospital; Bruceton First United Methodist Church, 148 Pine St. N., Bruceton, TN 38317; or the donor's charity of choice.

The Tennessee Comptroller's Office is sending a team to Shelby County to "perform the necessary reconciliations and reporting the clerk's office has failed to accurately provide despite repeated requests," reports the Commercial Appeal. The move comes after County Trustee Regina Newman told commissioners she will be un-posting revenue reports from County Clerk Wanda Halbert's office because of incorrect reports. "The evidence of incompetence and willful neglect by management in the Shelby County Clerk's Office is overwhelming," said Comptroller of the Treasury Jason E. Mumpower. The inaccurate revenue reports have resulted in the county’s delinquency on payments to public schools and not knowing if wheel tax revenues are being met as forecasted.

The U.S. Judicial Conference's Committee on Codes of Conduct on Monday revised an earlier advisory opinion to strengthen requirements governing recusals by judges involving parent-subsidiary relationships between companies, reports Reuters. A federal judge who invests in a company or mutual fund that owns a 10% stake of a party in a lawsuit may still have to be recused from presiding over the case, according to a new judicial ethics opinion. The stricter standards come after a 2021 Wall Street Journal report documented over 130 federal judges who failed to recuse themselves from cases involving companies in which they owned stock. The report prompted Congress to pass bipartisan legislation imposing tougher disclosure requirements for U.S. Supreme Court justices and federal judges regarding their financial holdings.