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The IHRA: Extending protections for pregnant women in the workplace
On June 26, 2014, the Illinois Legislature passed and sent House Bill 8 (HB-8) to the Governor to be signed. HB-8 amended the Illinois Human Rights Act (“IHRA”) to prohibit employers with more than one employee from discriminating against employees based on pregnancy, childbirth and conditions related to pregnancy or childbirth. Additionally, HB-8 requires that employers with more than one employee provide reasonable accommodations to employees suffering from conditions related to pregnancy or childbirth.
In passing HB-8 the General Assembly found that current workplace laws in Illinois proved inadequate to protect pregnant workers from enjoying equal employment opportunities.1 The General Assembly further recognized that women represent nearly 50 percent of all workers in Illinois,2 and that “failing to provide reasonable accommodations to pregnant women leads to lost wages, periods of unemployment, and lost employment opportunities and job benefits such as seniority, all of which have lifelong repercussions on women’s economic security and advancement and the well-being of their families.”3 The General Assembly also noted that “most women work during pregnancy,”4 and that by continuing to work, “women can maintain and advance their economic security.”5 Further, if women can work throughout their pregnancies with accommodation, they may be able to take longer periods of leave after they give birth “which in turn facilitates breastfeeding, bonding with and caring for a new child, and recovering from childbirth.”6
On August 26, 2014, the Governor signed HB-8 with the changes to the IHRA going into effect January 1, 2015.
Now before addressing the changes, it is important to note that prior to HB-8 being passed and signed into law, the IHRA already prohibited discrimination based upon pregnancy.7 However, the 2015 amendments to the IHRA not only greatly expanded the protections under the IHRA, but also added that employers must now provide reasonable accommodations to pregnant employees when requested.
The discrimination protections provided under the IHRA to pregnant employees were expanded in two ways. First the IHRA pregnancy discrimination protections were modified to cover more employers by changing the definition of employer for pregnancy discrimination from “15 or more employees” to “one or more employees.”8 Additionally, the IHRA definition of pregnancy was expanded from covering pregnancy and “related medical conditions,” to pregnancy and “common conditions related to pregnancy,” meaning that some conditions protected may not necessarily be medical in nature.9 While these were two major changes, the most significant change to the IHRA was the language that required employers to provide reasonable accommodations for employees who are pregnant or have conditions related to pregnancy.
The IHRA now specifically defines “reasonable accommodations” in relation to pregnancy and provides that reasonable accommodations may include, but are not limited to:
“more frequent or longer bathroom breaks, breaks for increased water intake, and breaks for periodic rest; private non-bathroom space for expressing breast milk and breastfeeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; the provision of an accessible worksite; acquisition or modification of equipment; job restructuring; a part-time or modified work schedule; appropriate adjustment or modifications of examinations, training materials, or policies; re-assignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.”10
An employer may be excused from making a requested accommodation if it can demonstrate that the accommodation “would impose an undue hardship on the ordinary operation of the business of the employer.”11 Additionally, an employer may request that the employee provide documentation from the employee’s physician regarding the need for the requested accommodation “if the employer’s request for documentation is job-related and consistent with business necessity.”12 When such a request is made, the employee must promptly respond to the employer’s request for medical documentation.13 As such, these changes are very similar to the interactive process that most employers are already required to engage in under the American with Disabilities Act (“ADA”).
However, the changes to the IHRA included language that provides a specific divergence from the ADA. Under the IHRA amendment, employers cannot force an “accommodation” on a pregnant employee that the employee neither wanted nor requested – nor may the employer force an employee to take leave if the employer could offer a reasonable accommodation.14 This language and procedure is markedly different than the ADA which requires employers to provide reasonable accommodations, but also provides that it is the employer’s prerogative to choose a reasonable accommodation; an employer is not required to provide the particular accommodation that an employee requests.15
As noted above, one of the accommodations that can be provided is time off. Much like the ADA, the IHRA does not provide any specific reference as to how much time off must be provided under the statute. However, it does provide that employers must reinstate a pregnant employee or employee affected by childbirth “to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits, and other applicable service credits…unless the employer can demonstrate that the accommodation would impose an undue hardship on the ordinary operation of the business of the employer.”16
The amendments to the IHRA are in line with the EEOC Guidance on Pregnancy Discrimination issued on July 14, 2014, and its amendments on June 25, 2015.17 It is also in line with the federal Pregnancy Discrimination Act (PDA) and decision in Young v. United Parcel Serv., Inc., in which the Supreme Court held a pregnant employee could create a genuine issue of material fact to overcome summary judgment by providing evidence that an employer accommodated non-pregnant employees with similar restrictions.18 Prior to Young, Courts had traditionally interpreted the PDA as requiring employers to ignore a female employee’s pregnancy and treat that employee the same as it would if she were not pregnant, including with respect to absences and time off.19 It should also be noted, that the Supreme Court in Young further recognized that under the 2008 amendments to the ADA, the plaintiff’s work restrictions due to her pregnancy would likely fall within the expanded ADA definition of a disability requiring the employer to provide an accommodation.20
Pregnant workers in Illinois now have significant protection not only under the IHRA, but also under the federal PDA and ADA.