Representing Clients Under the New Illinois Pregnancy Accommodation Act

An overview of the new Illinois pregnancy accommodation law and what it means for employers and employees.

On January 1, 2015, the Illinois Pregnancy Accommodation Act1 ("IPAA") became law, and enhanced the rights of pregnant employees by substantially expanding Illinois employers' duty to accommodate.

Prior to IPAA, pregnant employees were caught in a legal abyss; if their pregnancy or pregnancy-related condition did not rise to the level of a "disability" or "impairment" requiring an accommodation under the Americans with Disabilities Act ("ADA")² and if the employee was not eligible for leave under the Family and Medical Leave Act ("FMLA"),³ her⁴ options for accommodations were slim to none.⁵ Enter IPAA, which dramatically changed the landscape for Illinois employers and their pregnant employees.⁶

What's different now? An overview of IPAA

IPAA amended the Illinois Human Rights Act ("IHRA"),⁷ and heightens the duty of all Illinois employers to accommodate job applicants and employees "affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth," including probationary and part-time employees.⁸ Specifically, it is now a civil rights violation for Illinois employers to

• not make reasonable accommodations for any medical or common condition of a job applicant or employee related to pregnancy or childbirth;
• deny employment opportunities or benefits to or take adverse action against an otherwise qualified job applicant or employee if the denial or adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee;
• require a job applicant or employee to accept an accommodation when she did not request and chooses not to accept one;
• require a job applicant or employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided; or
• refuse to reinstate an employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and benefits upon her signifying her intent to return or when her need for reasonable accommodation ceases.

Additionally, IPAA provides an extensive list of possible accommodations for pregnant employees, including but 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; reassignment 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.⁹ Notably, prior to IPAA, employees affected by pregnancy would not otherwise be entitled to several of the statute's list of possible accommodations.

IPAA complaints, like all complaints made pursuant to the IHRA, are subject to administrative exhaustion, which requires complainants to first file the charge with the Illinois Department of Human Rights for investigation.¹⁰ Similarly, violations of IPAA generate the same exposure as other claims made pursuant to the IHRA. Thus, available remedies to a successful complainant include, but are not limited to, actual damages, back pay, reinstatement, lost benefits, pre-judgment interest, attorneys' fees and costs, and any other relief deemed necessary to make complainant whole.¹¹

IPAA practice pointers for practitioners

The contrast between the pre-IPAA world and the new status quo in Illinois is stark and necessitates that practitioners representing both employees and employers approach the IPAA with extra caution. The following practice pointers select and address IPAA provisions that will likely generate the most litigation among Illinois employers and employees.

The stork spread his wings widely. IPAA is uniquely broad in coverage and applicability in four distinct ways.

First, unlike many employment statutes that do not apply to smaller employers, IPAA applies to all Illinois employers regardless of employee headcount.¹² Second, presenting another divergence from other employment statutes, IPAA applies to job applicants, part-time employees, and probationary employees.¹³

Third, IPAA broadly protects any employee who is "affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth," while other employment statutes protect a narrower population.¹⁴ Fourth, IPAA expressly prohibits a wider range of employer actions than other statutes, and therefore gives rise to a cornucopia of possible claims to be asserted by an employee.¹⁵ In sum, IPAA covers more employers, more employees, and more employer actions than most other state and federal employment statutes.

For plaintiffs' counsel, this means that an increased number of job applicants and employees will be able to state viable claims under IPAA. Claims under IPAA for failure to accommodate and retaliation may come in all shapes and sizes.

For instance, an employer's sluggish responsive to an applicant's request for an accommodation, an adverse action against an employee after a request for accommodation, forcing an employee to take an accommodation, or taking an adverse action against an employee because of her intention to become pregnant are all actionable violations of IPAA.¹⁶ As a result, one employee may be able to sustain several different IPAA claims against an employer.

Plaintiffs' counsel should be sure to conduct a highly detailed intake interview to identify all possible IPAA claims. In addition, client intake interviews should not be limited only to pregnant women; the lack of clarifying precedent and broad IPAA definitions of "common conditions related to pregnancy or childbirth" open employers to claims from an expanded population of employees, including but not limited to: employees undergoing fertility treatment, those with post-partum medical issues, men affected by pregnancy-related conditions, pregnant job applicants, male job applicants, employees who have suffered miscarriages, employees with abortion-related conditions, and nursing mothers.

Conversely, for defense counsel, IPAA's expansive applicability foreshadows increased litigation risks for employers, regardless of size or employee status. Notably, reviewing an employer's interactions with job applicants is critical; an employer's failure to provide job applicants with pregnancy accommodations, and the failure to provide timely responses to an applicant's pregnancy accommodation request, can generate liability under IPAA.¹⁷

Moreover, many employers will mistakenly restrict leave and reinstatement rights to FMLA eligible employees, which flatly violates IPAA. Counseling potential defendants to amend personnel handbooks and policies to reflect that all employees are eligible for leave for pregnancy or pregnancy-related conditions will cure such noncompliance.

The undue hardship defense. IPAA permits an employer to deny a request for pregnancy accommodation only where granting it would present an undue hardship.¹⁸ To successfully assert an undue hardship defense under IPAA, an employer has the burden of demonstrating that the nature and cost of the accommodation, the overall financial resources and size of the employer, the type of operations the employer is engaged in, and the impact the accommodation would have upon overall operations are such that the accommodation substantially impacts the ordinary operations of the business.¹⁹

Importantly, though, IPAA also provides a rebuttable presumption that an accommodation will not impose an undue hardship if the employer provides or must provide a similar accommodation to non-pregnant employees otherwise entitled to an accommodation.²⁰

For instance, an employer that offers a light duty program to temporarily injured or disabled employees is less likely to successfully argue that offering the same accommodation to pregnant employees poses an undue hardship. Similarly, if an employer permits a Muslim employee to pray five times per shift for 15 minutes, then claims an undue hardship when a pregnant employee asks for five 15-minute breaks per shift to express breastmilk, the employer's defense will not likely be successful.

For defense counsel, it is imperative to review an employer's accommodation and disability policies to assure congruity between the accommodations offered to pregnant employees and to those offered others. Amending the employer's accommodation policies to harmonize the treatment of pregnant employees with the treatment of others will decrease exposure under IPAA.

While reviewing the employer's policies, defense counsel should also ensure IPAA compliance by advising that the employer's policies or handbook properly summarize (1) IPAA's prohibition against pregnancy discrimination, (2) an employee's entitlement to reasonable accommodations, and (3) information about filing a charge of pregnancy discrimination.²¹

Similarly, plaintiffs' counsel should identify at the intake stage any incongruities between an employer's accommodation policies for pregnant employees versus other classes of employees. Because undue hardship is the singular defense available to an employer under IPAA, obtaining information about the employee's request for an accommodation is as important as asking about the functions she performs, the size and general operations of her employer, and the overall impact of her requested accommodation. Doing so allows an early assessment of the viability of an employer's potential undue hardship defense.

Accommodation and the interactive process. Like the ADA, IPAA mandates that the employee and employer engage in an "interactive process."²² At a minimum, the interactive process requires that the employer and employee "engage in a timely, good faith, meaningful exchange to determine the effective reasonable accommodation."²³

For employers, failure to engage in the interactive process is fatal; even if the requesting employee is not entitled to an accommodation or the employer could successfully assert an undue hardship defense, the employer is still required to engage in IPAA's requisite interactive process.

Defense counsel should advise employers to initiate the interactive process, explore possible accommodations with the requesting employee, and heavily document all interaction with the requesting employee.²⁴ Also, before initiating the interactive process, defense counsel should advise employers to promptly request medical information that supports an employee's accommodation request.²⁵

With some limitations, IPAA permits employers to ask the employee's health care provider for information surrounding the medical justification for the requested accommodation, a description of the medically advisable reasonable accommodation, the date the accommodation became medically advisable, and the probable duration of the reasonable accommodation.²⁶ Initiating the interactive process with documentation in hand prevents unnecessary interruptions caused by a lack of concrete documentation and establishes a firm understanding of the employee's needs from the start.

Plaintiff's counsel must assure that the client has submitted a proper request for accommodation to the employer and documented all interaction (or non-responsiveness), both of which are critical to sustaining a claim against an employer for breach of the interactive process.²⁷ In addition, managing an employee's expectations is imperative; IPAA, like other accommodation statutes, does not entitle an employee to the accommodation of her choice. Instead, an employee is entitled to a reasonable accommodation, as determined by the employer to satisfy the employee's restrictions.²⁸

Moreover, advising potential plaintiffs under IPAA calls for early assessment of the multitude of available accommodations, followed by direction to the potential plaintiff to follow through with her primary care provider. This way, your client has both identified an accommodation and secured the appropriate medical recommendation before the interactive process begins, greatly diminishing an employer's ability to stall or delay the process.

Notably, given the time sensitivity of pregnancy and pregnancy-related conditions, early resolution of IPAA claims via the interactive process is best for both employers and employees.

Conclusion

As Illinois becomes the proud new parent of a complex statute, counsel must advise employers and employees carefully. This includes briefing clients on the duties and rights conferred upon them and staying abreast of forthcoming precedent from the IHRC and courts that interpret, clarify, and apply IPAA. IPAA's required interactive process and broad accommodation mandates greatly enhance the rights of pregnant employees, and will ultimately guide employers to adopt policies that protect and strengthen Illinois families.

Jennifer Purcell is a Senior Labor & Employment Counsel at Cook County Health & Hospitals System. This article expresses only the author's personal perspectives and legal analysis, and may not reflect the views of her affiliates or employer.

jennifer.n.purcell@gmail.com

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1. 775 ILCS 5/1-102, 1-103, 2-101, 2-102, 6-101.
2. See, e.g., Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 553 (7th Cir. 2011).
3. 29 CFR § 825.110 (An FMLA eligible employee is "an employee who has been employed by the employer for at least 12 months, and has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave.")
4. The use of pronouns "she" and "her" in this article are intended only to relate to the biological sex of the pregnant employee, and not the pregnant employee's gender. The article acknowledges that sex and gender are not synonymous.
5. In March 2015, approximately two months after the IPAA became law in Illinois, the United States Supreme Court ruled in Young v. UPS that a pregnant employee may raise a Title VII claim of disparate treatment discrimination under the Pregnancy Discrimination Act by demonstrating that: (1) the employee sought an accommodation on the basis of a pregnancy-related condition; (2) the employer denied the accommodation request; and (3) the employer approved accommodations for other employees similar in their inability to work. Young v. UPS, 135 S. Ct. 1338 (2015). Borrowing a page from traditional Title VII analysis, the Court also observed that an employee must additionally prove that an employer's legitimate, non-discriminatory reason for denying the requested accommodation is pretextual. Id. While Young imposes a greatly heightened duty to accommodate pregnant employees, IPAA assumes and augments the holding in Young. Therefore, this article declines to explore Young in depth because IPAA imposes upon Illinois employers a "Young-plus" duty to accommodate.
6. For purposes of this article, the term "pregnant employee" is used for ease of readership, and should be read to include pregnant employees and any employees affected by pregnancy-related conditions.
7. 775 ILCS 5/1 et seq.
8. Id. §§ 5/2-102(I), (J).
9. Id. § 5/2-102(J).
10. A complainant must first file a charge with the IDHR within 180 days of the alleged IHRA violation. See 775 ILCS 5/7A-102(A). Once the IDHR investigates the charge and issues a report, the complainant has the option, which must be exercised within ninety days of receiving the report, of proceeding before the IHRC or commencing a civil action in court. See 775 ILCS 5/7A-102(D).
11. 775 ILCS 5/8 et seq.
12. 775 ILCS 5/2-102(I).
13. Id. § 5/2-102(J).
14. See 39 Ill. Reg. 15121 (eff. Nov. 4, 2015), (defining a "medical condition related to pregnancy or childbirth" as "a physical or mental impairment, condition, feature or attribute that develops as a result of or in conjunction with pregnancy or childbirth…[m]edical conditions related to pregnancy or childbirth need not constitute a disability within the meaning of the Act and may be transitory in nature…[e]xamples of medical conditions related to pregnancy or childbirth include, but are not limited, to gestational diabetes, preeclampsia, post-partum depression, ectopic pregnancy, miscarriage, hypothyroidism and toxoplasmosis.").
15. 39 Ill. Reg. 15121, 15131-2 (eff. Nov. 4, 2015).
16. 39 Ill. Reg. 15121-2, 15129, 15131-2 (eff. Nov. 4, 2015).
17. 775 ILCS 5/2-102(J); 39 Ill. Reg. 15127-31 (eff. Nov. 4, 2015).
18. 775 ILCS 5/2-102(J); 39 Ill. Reg. 15124-6 (eff. Nov. 4, 2015).
19. 775 ILCS 5/2-102(J).
20. Id.
21. 39 Ill. Reg. 15132-3 (eff. Nov. 4, 2015). IPAA requires employers to include in their handbooks and also post a notice found at: http://www.illinois.gov/dhr/Publications/Documents/Pregnancy_Posting-lgl-ENG14.pdf.
22. 39 Ill. Reg. 15116, 15124-6 (eff. Nov. 4, 2015).
23. Id.
24. Id.
25. 39 Ill. Reg. 15129-31 (eff. Nov. 4, 2015).
26. Id.
27. 39 Ill. Reg. 15116, 15124-6 (eff. Nov. 4, 2015).
28. 39 Ill. Reg. 15122-6, 15129-31 (eff. Nov. 4, 2015).