April 2015 Volume IX No. 2 Taking Care of Business
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Pregnancy Claim


Jim Jorgensen

The Pregnancy Discrimination Act (“PDA”) is in place, and it prohibits discrimination in the workplace because of pregnancy. For example, an employer cannot refuse to hire a woman because she is pregnant, or has indicated that she plans on becoming so. Similarly, that same employer cannot fire a woman who becomes pregnant, or who ended a pregnancy through an abortion.

Until a very recent United States Supreme Court, the PDA was never interpreted as an accommodation statute. Other laws, like the Americans With Disabilities Act or the Family Medical Leave Act, might, under certain circumstances, require employers to accommodate pregnant employees.

The recent Supreme Court case has changed the terrain. In the case, an employee worked as a driver for UPS. She became pregnant and presented a note from her doctor recommending that she not lift packages heavier than 20 pounds. The employee’s actual job involved overnight letters. However, UPS had a rule that its drivers had to be able to lift 70 pound packages.

UPS had a “light duty” positions for employees who were injured at work. It refused to offer the light duty position to the employee because her pregnancy was obviously not a work-related injury.

Did the employer discriminate against the employee because she was pregnant? It would seem like the answer is “no”. She was denied the light-duty position because she was not injured at work, not because she was pregnant.

The Supreme Court ruled for the employee, holding that she might have a PDA claim. The Court noted that the employer accommodated many employees (work injuries), but failed to accommodate the pregnant employee. As one judge said: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Employers need to be alert. Only under limited circumstances should it consider denying pregnant women a benefit that it affords other employees.

If you have questions regarding Pregnancy Claims, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Spouse Includes Same Sex Marriage


Jim Jorgensen

In United States v. Windsor, the Supreme Court held unconstitutional, Section 3 of the Defense of Marriage Act’s definition of marriage under federal law as the union of a man and woman. As a result of the case, federal laws providing rights to “spouses” had to be revised.

The Department of Labor has responded by adopting new regulations under the Family Medical Leave Act (“FMLA”). Under the regulations, for purposes of taking FMLA leave to care for a spouse, the term ‘spouse’ would be interpreted to mean ‘a husband or wife as defined or recognized under the law of the state where the marriage was celebrated, including same sex marriage.

As a result of this definition, eligible Indiana and Illinois employees will be able to take FMLA leave to care for their lawfully married same-sex spouse with a serious health condition. Additionally, these same employees will be able to also take qualifying emergency leave due to their lawfully married same-sex spouse’s covered military service.

The expansion of FMLA rights to same sex marriage also extend to an employee’s right to take military caregiver leave for their lawfully married same-sex spouse. Finally, eligible employees will be able to take leave to care for a stepparent who is in a same-sex spouse marriage with the employee’s parent.

If you have questions regarding same-sex marriages, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.