1. PREGNANCY ACCOMMODATIONS MAKING WAVES: IMPLICATIONS OF THE NEW EEOC GUIDANCE AND THE MINNESOTA WOMEN’S ECONOMIC SECURITY ACT Presented by: Kevin Lindsey, Commissioner, Minnesota Department of Human Rights This presentation is not meant to and does not constitute legal advice.

2. Jan. 28, 2015Minnesota State Ethnic Councils 2 Introduction This presentation will discuss recent amendments to Minnesota law concerning the Women’s Economic Security Act (WESA), which impacts employers’ obligations to provide pregnancy accommodations for employees. This presentation is not meant to be an exhaustive discussion of WESA – for example the topic of large state contractors now being obligated to obtain an equal pay certificate will not be discussed.

3. Jan. 28, 2015Minnesota State Ethnic Councils 3 Background Governor Mark Dayton signed WESA into law this past Mother’s Day, May 11, 2014. WESA amended Minn. Stat. §363A of the Minnesota Human Rights Act (MHRA) and Minn. Stat. §181 Employment Statute. Employees and employers should be aware of these new provisions and amendments to understand their rights and obligations.

4. Jan. 28, 2015Minnesota State Ethnic Councils 4 MDHR Overview The Minnesota Department of Human Rights (MDHR) is charged with the responsibility of eliminating unlawful discrimination in the workplace under the MHRA. Slightly more than 60% of the charges filed with MDHR in 2014 concerned employment discrimination. The three most common employment discrimination charges in the last six months of 2014 were: disability (28%), sex (23%) and race (22%).

5. Jan. 28, 2015Minnesota State Ethnic Councils 5 MDHR Partnership with DLI The Minnesota Department of Labor and Industry (DLI) and MDHR are working together to ensure that all provisions of WESA that concern protections afforded to pregnant workers, nursing mothers, and workers that seek pregnancy and parental leave are enforced.

6. Jan. 28, 2015Minnesota State Ethnic Councils 6 MDHR Collaboration with EEOC MDHR is also partnering with the EEOC on the EEOC’s following strategic enforcement initiatives: 1. Eliminate recruiting and hiring barriers 2. Protect vulnerable workers 3. Enforce equal pay laws 4. Ensure pregnancy accommodations are provided

7. Jan. 28, 2015Minnesota State Ethnic Councils 7 WESA Overview 1. Minn. Stat. §363A.08, Familial Status 2. Minn. Stat. §181.939, Nursing Mothers 3. Minn. Stat. §181.941, Pregnancy and Parenting Leave 4. Minn. Stat. §181.9414, Pregnancy Accommodations

8. Jan. 28, 2015Minnesota State Ethnic Councils 8 MHRA – Familial Status The section of the MHRA prohibiting employment discrimination, Minn. Stat. §363A.08, was amended to include “familial status” as a protected class. Familial status under the MHRA provides protection for a: Parent, guardian or designee of a parent or guardian that lives with at least one minor or A person who is pregnant or is in the process of securing legal custody of a minor

9. Jan. 28, 2015Minnesota State Ethnic Councils 9 MHRA – Familial Status How is an employee defined under the MHRA? Employee “means an individual who is employed by an employer and who resides or works in this state. Employee includes a commission salesperson, as defined in section 181.145, who resides or works in this state.” See, Minn. Stat. §363A.03, Subd. 15.

10. Jan. 28, 2015Minnesota State Ethnic Councils 10 MHRA – Familial Status How many employees must an employer have to fall within the employment provision of the Act concerning familial status? Employer includes all employers that have “one or more employees.” See, Minn. Stat. §363A.03, Subd. 16.

11. Jan. 28, 2015Minnesota State Ethnic Councils 11 Employment General – Private Cause of Action WESA created the right to a private cause of action for injunctive relief, damages and attorney fees, Minn. Stat. §181.944, for employees against their employer for violations of the following new or amended provisions of Minnesota law: Nursing mothers, Minn. Stat. §181.939 Pregnancy accommodations, Minn. Stat. §181.9414 Pregnancy and Parental leave, Minn. Stat. §181.941

12. Jan. 28, 2015Minnesota State Ethnic Councils 12 Employment – Nursing Mothers Employers under Minn. Stat. §181.939 must “reasonably”: Provide unpaid break time for nursing mothers to express milk Provide private space other than a bathroom that is shielded from view, is free from intrusion and includes access to an electrical outlet An employer may not retaliate against an employee under the law.

13. Jan. 28, 2015Minnesota State Ethnic Councils 13 Employment – Nursing Mothers What changed? 1. Employers should do more than provide the use of a public bathroom 2. Employers should provide access to an electrical outlet 3. Employers are prohibited from retaliating against an employee

14. Jan. 28, 2015Minnesota State Ethnic Councils 14 Employment – Nursing Mothers “Employer” is defined as “a person or entity that employs one or more employees and includes the state and its political subdivisions.” Employee is not defined. See, Minn. Stat. §181.939.

15. Jan. 28, 2015Minnesota State Ethnic Councils 15 Employment General – Private Cause of Action How is an employee defined, under Minn. Stat. §181.940 - §181.944? An employee is an individual who: 1. Performs services for hire, 2. For at least 12 months preceding the request, and 3. At least half-time during the 12 months immediately preceding the leave. Independent contractors are not included within the definition of an employee.

16. Jan. 28, 2015Minnesota State Ethnic Councils 16 Employment General – Private Cause of Action How is an employer defined? An employer is defined as an: 1. Individual, corporation, partnership, association, non-profit organizations or governmental subdivision that employs 2. 21 or more employees 3. At a least one site in Minnesota

17. Jan. 28, 2015Minnesota State Ethnic Councils 17 Employment – Pregnancy Accommodations An employer must provide the following reasonable accommodations to an employee for health conditions related to pregnancy or childbirth if requested by the pregnant employee: 1. More frequent restroom, food and water breaks 2. Seating 3. Limits on lifting more than 20 pounds Employer may not deny request on the basis of undue hardship or require documentation from a medical provider for the accommodation. Minn. Stat. §181.9414.

18. Jan. 28, 2015Minnesota State Ethnic Councils 18 Employment – Pregnancy Accommodations For all other pregnancy accommodations, an employer must engage in an interactive process and, unless they can show an undue hardship, provide reasonable accommodation. Reasonable accommodations may include, but are not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks and limits to heavy lifting. An employer is not required however to discharge, transfer or promote an employee or to create a new position in order to accommodate the pregnant employee.

19. Jan. 28, 2015Minnesota State Ethnic Councils 19 Employment – Pregnancy and Parental Leave Minn. Stat. §181.941 requires employer to provide 12 weeks of leave of absence to: A biological or adoptive parent in conjunction with the birth or adoption of a child; or A female employee for prenatal care, incapacity due to pregnancy, childbirth or related health conditions If a child remains in the hospital longer than the mother, the leave of absence may begin within 12 months of when the child leaves the hospital.

20. Jan. 28, 2015Minnesota State Ethnic Councils 20 Employment – Pregnancy and Parenting Leave What changed? 1. Leave of absence increased from 6 weeks to 12 weeks 2. Period of time in which the leave of absence can be taken when the child remains in the hospital after the mother is discharged was increased from six weeks to 12 months

21. Jan. 28, 2015Minnesota State Ethnic Councils 21 Employment – Pregnancy and Parenting Leave Employer must continue providing the employee with insurance but the employer is not required to pay the cost of the insurance while the employee is on leave. Leave runs concurrent to other paid leave offered by the employer and any leave taken under the Family Medical Leave Act (FMLA). The law contains an anti-retaliation provision.

22. Jan. 28, 2015Minnesota State Ethnic Councils 22 MDHR Pregnancy Accommodation Landscape Sex Disability Familial Status

23. Jan. 28, 2015Minnesota State Ethnic Councils 23 Sex Discrimination Minnesota courts have interpreted the MHRA consistently with Title VII and the Pregnancy Discrimination Act. MHRA prohibits employers from discriminating against women on the basis of their gender and on the basis of their ability to become pregnant. On July 24, 2014, the EEOC issued guidance to employers entitled “Pregnancy Discrimination and Related Issues.”

24. Jan. 28, 2015Minnesota State Ethnic Councils 24 Sex Discrimination An employer can violate the law under the MHRA or Title VII, on the basis of an individual’s capacity to become pregnant, when it: 1. Takes adverse action against the individual, 2. Treats the individual differently than individuals similar in ability or inability to work, 3. Harasses or creates a hostile environment for the individual, 4. Utilizes a policy that has a disparate impact on such individuals, or 5. Denies the individual a right under the law.

25. Jan. 28, 2015Minnesota State Ethnic Councils 25 Disability Discrimination MHRA prohibits discrimination against employees who are, have a record of, or are regarded as having a disabling impairment. Employers with more than 15 employees are required to accommodate an employee who has a pregnancy-related impairment that rises to the level of a disability unless the accommodation imposes an undue hardship on the employer. See, Minn. Stat. 363A.08, Subd. 6.

26. Jan. 28, 2015Minnesota State Ethnic Councils 26 Familial Status An employer can violate the law under the MHRA, on the basis of an individual’s familial status, when it: 1. Takes adverse action against the individual, 2. Treats the individual differently than individuals similar in ability or inability to work, 3. Harasses or creates a hostile environment for the individual, 4. Utilizes a policy that has a disparate impact on such individuals, or 5. Denies the individual a right under the law.

27. Jan. 28, 2015Minnesota State Ethnic Councils 27 Hypothetical Question No. 1 Jennifer had been successfully managing a neurological disability with medication for several years. When she became pregnant, her physician took her off the medication. Without the medication, she began to experience increased fatigue. Jennifer requests that she be allowed to use a stool and take more frequent breaks during the day to alleviate her fatigue.

28. Jan. 28, 2015Minnesota State Ethnic Councils 28 Hypothetical Question No. 2 Lupita has recently returned back to work at Clean Air warehouse after having her first child. She has decided to express milk while at work. There is a small room in the warehouse that has an electrical outlet but it only has a curtain instead of a door. Lupita’s only other option is to go inside the company’s main building on the third floor; this trip for Lupita would take 35 minutes.

29. Jan. 28, 2015Minnesota State Ethnic Councils 29 Hypothetical Question No. 3 Mary began working Huey and Dewey Law Firm as a paralegal on February 2014. Mary worked with six other paralegals and managed cases for 5 attorneys. On January 10, 2015, Mary discovered she was pregnant. Mary immediately began suffering from extreme morning sickness. Mary spoke with the named partners about coming into work at 10 a.m. instead of 8 a.m. and then leaving later in the evening. The named partners were upset because the firm had a big case that was going to trial for at least four weeks.

30. Jan. 28, 2015Minnesota State Ethnic Councils 30 Hypothetical Question No. 4 Betty had complications after the birth of her first child, Kevin, which resulted in both of them having an extended hospital stay. Kevin stayed in the hospital for a week after Betty was allowed to come home. After Betty, had returned back to work for two months she noticed that Kevin was still not eating as she wanted. Betty decided to ask her supervisor if she could have 12 weeks off to be with her son. Prior to having her son, Betty had requested and obtained 4 weeks of Family Medical Leave.

31. Jan. 28, 2015Minnesota State Ethnic Councils 31 Hypothetical Question No. 5 Susan requests from Bob, her supervisor, an accommodation from having to lift 10 pounds. Bob grants the request. A month later, Susan now wishes to transfer to a less strenuous position for the remainder of her pregnancy. Bob now wishes to ask Susan for information from her medical provider in support of the accommodation. What information does Susan have to provide Bob?

32. Jan. 28, 2015Minnesota State Ethnic Councils 32 Hypothetical Question No. 6 An employer with 10 employees has a policy that only allows individuals injured on the job to be granted light duty work. Is the policy legal under federal and state law.

33. Jan. 28, 2015Minnesota State Ethnic Councils 33 Hypothetical Question No. 7 Jayne is told by her supervisor that having a baby is going to hurt her chances for promotion. After her baby is born, her supervisor refuses to allow her time to express milk. Jayne comes to HR to complain. What violations of the law should be investigated by Human Resources?

34. Jan. 28, 2015Minnesota State Ethnic Councils 34 Contact the Minnesota Department of Human Rights For more information or to inform the Department of a violation of the law visit www.mn.gov/mdhr or call: 612.539.1118 651.296.1283 TTY 800.657.3704