Amendment to Philadelphia Ordinance Would Expand Protection of Pregnant Employees

By Alizah Z. Diamond

On October 3, 2013, three Philadelphia City Council members introduced legislation amending Chapter 9-1100 of The Philadelphia Code, entitled “Fair Practices Ordinance: Protections Against Unlawful Discrimination” that, if passed, would significantly expand protection of pregnant employees from workplace discrimination. The legislation, Bill No. 130687, would make it unlawful for a Philadelphia employer to refuse to provide reasonable accommodations to an employee “for needs related to pregnancy, childbirth, or a related medical condition”, where (i) the employee requests such accommodations; and (ii) such accommodations will not cause an undue hardship to the employer.

Proponents of the legislation argue that existing anti-discrimination laws, such as the federal Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), do not go far enough in protecting pregnant workers who can only perform their duties if given workplace accommodations. Among other things, they cite decisions by several courts interpreting the PDA (which requires employers to treat similarly situated pregnant and non-pregnant employees equally) as mandating that to state a claim, a pregnant employee must identify non-pregnant employees holding the same job responsibilities and having the same physical limitations on performing them, who received the accommodations sought by the pregnant employee. The legislation’s supporters also contend that while a pregnancy-related impairment that substantially limits a major life activity is considered a protected “disability” that must be reasonably accommodated under the ADAAA, there is no indication that this or any other law will protect employees who are having healthy pregnancies but need minor accommodations to be able to continue to perform their job duties.

As proposed, Bill No. 130687 would fill in these “gaps” in the protection of all pregnant employees by requiring that any limitations on their ability to perform their duties brought on by their pregnancy be reasonably accommodated. It does not define or in any way limit the term “pregnancy, childbirth, or a related medical condition,“, nor does it expressly link treatment of pregnant workers to that of similarly situated non-pregnant workers. The proposed legislation would give the employer the burden of proving that a proposed accommodation would create an “undue hardship” based on certain factors, including the nature and cost of the requested accommodation(s), the employer’s overall financial resources and the type of operation(s) of the employer.

The legislation was referred to the Committee on Law and Government. If passed, it would take effect immediately.

Please check our blog for updates on the status of this legislation.