Background:

Washington State Law Against Discrimination (WLAD)

Under the WLAD, the right to be free from discrimination because of certain protected status (such as race, national origin, sex, veteran or military status, sexual orientation, and disability) is considered a civil right. This includes the right to be free from discrimination in employment. It is an unfair practice for an employer to refuse to hire or to fire a person, or discriminate against a person in pay or conditions of employment, because of the person's protected status.

The Human Rights Commission (HRC) enforces the WLAD. An aggrieved person has administrative remedies, by filing a complaint with the HRC, or may file a private cause of action in court.

Discrimination Based on Pregnancy

Depending on the circumstances, an employee who believes she has been discriminated against because of her pregnancy may be able to establish a claim of disability discrimination or sex discrimination.

Based on a Washington Supreme Court case, pregnancy itself is not considered a disability. However, if a pregnancy-related medical condition results in the employee becoming temporarily disabled, the laws prohibiting discrimination because of disability could apply. Under the WLAD, an employer must provide reasonable accommodation to a disabled worker unless the employer can show that the accommodation would impose an undue hardship. Reasonable accommodation is defined by rule and means measures that:

enable equal opportunity in the application process;
enable the proper performance of the job held or desired; and
enable the enjoyment of equal benefits, privileges, or terms and conditions of employment.

An accommodation will be considered an undue hardship if the cost or difficulty is unreasonable in view of:

the size of and resources available to the employer;
whether the cost can be included in planned remodeling or maintenance; and
the requirements of other laws and contracts, and other appropriate considerations.

Examples of reasonable accommodations include, making adjustments in job duties, work schedules, or scope of work; changes in the job setting or conditions; and informing the employee of vacant positions and considering the employee for those positions if she is qualified.

Regarding sex discrimination, an employer generally may not treat male employees differently than female employees. An employer may not refuse to hire, demote, or fire a woman, or impose different terms and conditions of employment on a woman because of pregnancy or childbirth.

Generally, if an employer provides reasonable accommodations to a male employee who is impaired from doing his job, the employer may have to provide reasonable accommodations to a female employee who is impaired due to pregnancy.

Other Laws Regarding Pregnancy and Childbirth

The federal laws prohibiting sex discrimination provides that female employees affected by pregnancy, childbirth, or related medical conditions must be treated the same as other employees who have similar ability or inability to work.

Federal law also requires employers to provide reasonable break time for an employee to express milk for her nursing child for one year after the child's birth. Employers must provide a place, other than a bathroom, that is protected from view and free from intrusion from others. Employers with fewer than 50 employees are not subject to these requirements if compliance would impose an undue hardship.

Summary of Bill:

The WLAD is amended to include the right to receive reasonable accommodation in employment for pregnancy, childbirth, or pregnancy-related health conditions. It is an unfair practice for an employer:

to fail or refuse to make reasonable accommodation for an employee for pregnancy, childbirth, or a pregnancy-related health condition, including but not limited to, the need to express breast milk, unless the employer can demonstrate an undue hardship on the employer's program, enterprise, or business;
to take adverse action against an employee who requests or uses an accommodation;
to deny employment opportunities to an otherwise qualified employee if the denial is based on the employer's need to make reasonable accommodation;
to require an employee to take leave if another reasonable accommodation can be provided; or
to require an employee to accept an accommodation that she chooses not to accept.

Reasonable accommodation means measures that enable the proper performance of the job held or desired and that enable the enjoyment of equal benefits, privileges, or terms and conditions of employment. Reasonable accommodation includes, but is not limited to:

providing more frequent, longer, or flexible restroom breaks;
modifying a no food or drink policy;
allowing for time off to recover from childbirth;
acquiring or modifying equipment or an employee's work station;
providing seating or allowing the employee to sit more if her job requires her to stand;
providing for a temporary transfer to a less strenuous or less hazardous position;
providing assistance with manual labor; and
modifying work schedules.

An employer is not required to create additional employment that the employer would not otherwise have created, or to discharge, transfer, or promote any employee, unless the employer would do so to accommodate other classes of employees who need accommodation.

The bill does not preempt or otherwise affect existing laws addressing discrimination or in any way diminish or limit the coverage for a condition related to pregnancy, childbirth, or a pregnancy-related health condition.