Federal Court Allows ACLU Pregnancy Discrimination Case to Move Forward

A federal court determined July 14 that the American Civil Liberties Union can move forward with a lawsuit against Frontier Airlines, alleging the company discriminated against pregnant and breastfeeding employees. Frontier Airlines had requested the court dismiss the case.

In its complaint filed on behalf of four Frontier employees and “all others similarly situated,” (Hodgkins, et al, v. Frontier Airlines, Inc., No. 1:19-cv-03469 (Colo. Dec. 19, 2019)), the ACLU claimed the airline violated Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act — in addition to multiple state statutes — in its actions toward pregnant and breastfeeding employees. According to the ACLU, Frontier disciplined employees for pregnancy-related absences and forced pregnant employees to take unpaid leave rather than find them ground-related work when they were late into their pregnancies. The company also refused to make it possible for mothers to pump breast milk while on the job, the ACLU said in the complaint, which left plaintiffs with the choice of “continuing to breastfeed or earning a paycheck.”

Frontier Airlines’ “Dependability Policy” was a major factor in the discrimination, the ACLU suit charged. The policy penalized employees for absences related to pregnancy and treated those absences worse than other absence types protected under the FMLA and Americans with Disabilities Act, the ACLU said. In response to a request for comment on the suit, a representative for Frontier Airlines said the company does not comment on pending litigation.

Although discrimination associated with pregnancy is prohibited under multiple federal laws, including the FMLA, the Pregnancy Discrimination Act and the Americans with Disabilities Act, discrimination against pregnant employees remains a persistent issue.

In early June, the EEOC filed a lawsuit against an Illinois nursing home, alleging it required pregnant employees to disclose their pregnancies — an allegation the ACLU also leveled against Frontier Airlines in the aforementioned suit — and that it required pregnant employees to procure doctor’s notes saying they could work without restriction, even if they hadn’t asked for accommodation. More recently, an employee of New York City Economic Development Corporation sued her employerfor refusing to provide a requested pregnancy-related accommodation, “resisting” a grant of maternity leave and retaliating against her requests with a negative performance review.

Pregnancy discrimination tends to be more acute than other types of discrimination whereas sex and race discrimination tend to happen over a longer period of time, pregnancy discrimination tends to be more of a targeted response, often occurring at or shortly after the moment of disclosure. A Center for Employment Equity report on pregnancy discrimination at work found that pregnancy discrimination also appears to be more common in male-dominated fields and that more female managers can be a helpful factor in reducing such discrimination.

The Pregnant Workers Fairness Act, passed by the House in May, provides particularly clear standards on how employers should accommodate pregnant workers. But employers need not rely on legal text to provide their pregnant employees with care and accommodation; well-treated pregnant workers are more likely to remain in their jobs well beyond pregnancy, reducing turnover and recruitment issues for employers and contributing to a more understanding and positive workplace culture.

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