45 Trial Lawyer • Summer 2022 ordinance so it could be a powerful tool for Sierra to try to pursue. Portland City Code § 23.01.080.2; Sims v. Besaw’s Cafe, 165 Or App 180, 195 (2000). Reasonable accommodations In 2018, Adrienne worked in an Oregon warehouse at the time of her pregnancy and her job entailed regularly lifting and moving heavy boxes. Although Adrienne brought a doctor’s note to her employer asking for a temporary weight restriction on the boxes she could be assigned to lift, her employer said “we don’t give pregnant workers special or preferential treatment” and denied her accommodation request. As a result, Adrienne suffered health consequences. You might be surprised to learn it was not until 2020 that pregnant Oregonians like Adrienne gained rights requiring employers to honor their doctor’s pregnancy-related medical restrictions —and that many pregnant Americans are still without such a right. Proving employment discrimination claims typically comes in the form of: • “Disparate treatment” or “specific intent” — evidence that an employer intentionally treated a complainant less favorably than other employees. • Or “disparate impact” or “adverse impact” — evidence that focuses instead on the effects of an employment practice irrespective of intent. But neither of these theories fit neatly to obligate Adrienne’s employer to provide her with the requested accommodations. There can be a third route to proving discrimination that provides more protection in the form of “reasonable accommodations.” For example, the Americans with Disabilities Act (ADA) expanded the definition of discrimination to “not making reasonable accommodations to [] known physical or mental limitations.” 42 USC § 12112; ORS 659A.112. Under the disability discrimination laws, an employer that is aware a disability is impacting an employee in the workplace has an affirmative duty to engage in an “interactive process.” 29CFR§ 1630.2(o) (3); OAR 839-006-0206. Notably, the language of the 40-year old Pregnancy Discrimination Act (PDA) and the 1977 Oregon PDA do not reference a failure to provide “reasonable accommodations” as pregnancy discrimination. Employers have repeatedly and often successfully found their way around actually providing adequate protections for pregnant workers, leaving them in extremely dangerous and vulnerable conditions. See, https:// www.nytimes.com/interactive/2018/10/21/business/pregnancy-discrimination-miscarriages.html. One court stated that the “Pregnancy Discrimination Act does not, despite the urgings of feminist scholars… require employers to offer maternity leave or take other steps to make it easier for pregnant women to work. Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees....” Troupe v. May Dep’t. Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). SCOTUS also summed up the lackluster approach to supporting pregnant workers in Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015), stating: “The Court doubts that Congress intended to grant pregnant workers an unconditional ‘most-favored-nation’ status…” It begs the question—which human conditions are more “favored” than that of the arduous and often dangerous process of bringing life into the world? Federal law — to this day — continues to require a pregnant worker to prove that an employer voluntarily provided accommodations to other adequate “comparators” before demonstrating any kind of entitlement to any kind of accommodation to job duties. See, https:// www.nationalpartnership.org/our-work/ resources/economic-justice/pregnancy-discrimination/fact-sheet-pwfa.pdf. As a result, many pregnant workers face outright denials of reasonable accommodation requests that are necessary for the person’s safety and health, instead hearing comments such as “you’re pregnant, not broken.” The fix in Oregon In 2019, Oregon finally passed HB 2341-A (2019), effective January 1, 2020, as ORS 659A.147, which includes subsection (1)(b): “It is an unlawful employment practice for an employer, because of known limitations related to pregnancy, childbirth or a related medical condition, including but not limited to lactation, of a job applicant or an employee to fail or refuse to make reasonable accommodation to the known limitations, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.” Even so, employers continue to try to undermine these protections going so far as to argue that employers do not have a duty to engage in an “interactive process” with a pregnant worker or that certain obvious limitations of pregnancy are not “known” limitations. Because the Oregon Administrative Regulations have not explicitly incorporated pregnancy into the detai led disability accommodation framework in Division 6 of Chapter 839 (“Injured Workers; Disability; Veterans and See Pregnant or Trying 46
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