Disability, Pregnancy, and Religion: How to be Accommodating
by Sarah T. Glaser and Michelle C. White
State and federal law prohibits employers from discriminating against employees based on protected classifications. Certain protected classifications require employers to engage in the interactive process with covered employees to find reasonable accommodations. Three key areas of covered employees include disability, pregnancy, and religious accommodations. The interactive processes for these categories have similarities, but they also have important distinctions, which have been clarified and expanded in recent legal developments.
Recently, the Texas Supreme Court clarified when obesity can be considered a disability under Texas law. Tex. Tech Univ. Health Scis. Ctr. – El Paso v. Niehay, 671 S.W.3d 929 (Tex. 2023). In this case, the employee alleged that she was terminated because the employer “regarded her as” having a disability, which she identified as morbid obesity. The employer filed a joint motion for summary judgment and plea to the jurisdiction, arguing morbid obesity is not considered a physiological impairment under the Texas Labor Code unless it is caused by an underlying medical condition. The trial court denied the employer’s motion, holding that morbid obesity can be considered a disability under the Texas Labor Code in a “regarded as” claim. The court of appeals affirmed. However, the Texas Supreme Court reversed and dismissed. Acknowledging that one of the express purposes of the Texas Labor Code is to execute the policies of the Americans with Disabilities Act (“ADA”), the Court relied on comparisons to ADA regulations and guidance to establish that weight is an impairment only if it falls outside the normal range and it occurs because of an underlying physiological disorder. The Court rejected the employee’s arguments that (1) the medical community considers obesity to be a medical disorder, and (2) obesity is a physiological disorder because it is a function of physiology. Since the employee presented no evidence of an underlying condition or disorder, the Court held that she could not be “regarded as” having a disability.
The Texas Supreme Court may soon further clarify what it means to be “regarded as” having a disability. Dallas Cnty. Hosp. Dist. v. Kowalski, No. 05-21-00379-CV, 2023 WL 2782312 (Tex. App.—Dallas Apr. 5, 2023, pet. filed). In Kowalski, an employee requested a keyboard tray, a mouse tray, and lower computer monitors to help alleviate back pain. Her supervisor approved the request, but then forwarded the information to human resources, where the request was categorized as a “reasonable accommodation complaint.” The employee insisted the request was not based on a disability, but she was required to go through the ADA accommodation process. A few minutes after a mandatory “ergonomic appointment and evaluation,” the employer eliminated her position. The employee sued for disability discrimination and retaliation. The trial court denied the employer’s motions for summary judgment and plea to the jurisdiction because there was sufficient evidence to raise a question about whether the employer “regarded her as” an individual with a disability when it required her to follow the ADA procedures. A petition for review was filed with the Texas Supreme Court on July 21, 2023.
Disability: Transfer to a Vacant Position and the Interactive Process, Generally
When an employee requests an accommodation, both the employee and the employer must engage in the interactive process to find a reasonable accommodation. Equal Employment Opportunity Comm’n v. Methodist Hosps. of Dallas, 62 F.4th 938 (5th Cir. 2023). In this Fifth Circuit case, an employee was unable to perform essential functions of her position and requested a transfer to a new position as a reasonable accommodation, which was ultimately filled by a more qualified candidate in accordance with the employer’s policy to hire the most qualified candidate. After the employer’s repeated unsuccessful attempts to communicate with the employee about accommodations, the employer terminated the employee. The U.S. Equal Employment Opportunity Commission (“EEOC”) claimed that an employer’s “most qualified candidate” policy violates the ADA when the policy prevents a qualified, disabled employee from filling a vacant role as a requested accommodation. The Fifth Circuit held that the employer’s policy was not unreasonable on its face, as the EEOC’s proposed standard would “compromise the hospital’s interest in providing excellent and affordable care . . . and would be unfair to . . . other employees.” The court further held that the employee was responsible for the breakdown in the interactive process, finding that the employee repeatedly failed to respond to the employer’s letters.
The Pregnant Workers Fairness Act (“PWFA”) is a Federal law which requires employers with 15 or more employees to provide reasonable accommodations for known physical and mental limitations related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate an undue hardship. Recently, the EEOC proposed regulations to clarify the applicability and enforcement of the PWFA. While these regulations are not finalized and may be revised before they are issued, they provide important insight into how the EEOC will interpret and enforce the PWFA.
In these regulations, the EEOC used a broad definition of “reasonable accommodation.” Notably, the EEOC provided a specific list of reasonable accommodations that do not impose an undue hardship, including extra bathroom breaks/time, food and drink breaks, drinking water on the job, and sitting/standing as necessary. These four accommodations will be considered reasonable in virtually all circumstances and presumptively will not impose an undue hardship. Additionally, the regulations provide a non-exhaustive list of potential accommodations such as job restructuring, part-time work, uniform modifications, temporary leave, light duty, and, most notably, the temporary removal of an essential function.
Under the ADA, employees must be able to perform the essential functions of their position, with or without reasonable accommodation. However, under the PWFA, workers can forgo essential functions so long as they can resume them in the near future and the employer can reasonably accommodate their inability to perform the essential function. “Near future” is defined as within 40 weeks of the requested accommodation. Time after childbirth for recovery does not factor into this timeline. Additionally, if there is a separate accommodation related to a different pregnancy-related medical condition, there is a separate 40-week timeline for that accommodation.
Pregnancy and “Related Medical Conditions”
The statutory language of the PWFA covers pregnancy, including uncomplicated pregnancies, existing conditions exacerbated by pregnancy or childbirth, employees only needing a temporary change, and “related medical conditions.” These proposed regulations provide a broad, non-exhaustive list of “related medical conditions” such as past and potential pregnancy, lactation, use of birth control, menstruation, fertility treatments, endometriosis, postpartum anxiety and depression, symptoms associated with related medical conditions, and many others.
The PWFA also expands the requirements of the PUMP Act, which requires employers to provide reasonable time and a comfortable, private space to allow all nursing employees, non-exempt and exempt, to express milk. Under the PUMP Act, private employers with fewer than 50 employees may be able to establish an undue hardship exemption, but the proposed PWFA regulations restrict that exemption to employers with fewer than 15 employees. Under these regulations, the space provided for employees to express milk must also (1) be in reasonable proximity to the employee’s usual work area, (2) be regularly cleaned, (3) have electricity and appropriate seating, (4) have a surface sufficient to place a breast pump, and (5) be in reasonable proximity to a sink, running water, and a refrigerator for storing milk.
Employers also must engage in the interactive process for religious accommodation requests. Until recently, a requested religious accommodation that created a de minimis cost to the employer met the standard for an undue burden on the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). In a recent Supreme Court decision, the Court clarified the standard that an employer must meet to demonstrate an undue hardship as it relates to religious accommodations. Groff v. DeJoy, 143 S. Ct. 2279, 216 L. Ed. 2d 1041 (2023).
In this case, a U.S. Postal Service (“USPS”) employee requested an accommodation because his religious beliefs dictated that he could not work on Sundays. On days when a coworker was unable to swap, he did not report to work and faced progressive discipline that led to termination. The employee sued for failure to provide religious accommodations. USPS argued that requiring the only other employee at that location to work every Sunday without a break created an undue hardship. The district court granted summary judgment for USPS, and the Third Circuit affirmed, finding that the requested accommodation met the de minimis standard for religious accommodations. A unanimous Supreme Court vacated and remanded the case and clarified the rule under Title VII. The Court emphasized that the standard for religious accommodation is not a de minimis test, but a “substantial cost” test.
The Court held that “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The Court further clarified that “undue hardship” on coworkers is relevant but not sufficient to establish undue hardship on the employer unless this undue hardship affects the conduct of the business. Lastly, the Court indicated an employer is required to reasonably accommodate religion, not merely assess the reasonableness of a specific accommodation request without further consideration of other available options. This means that employers must engage in the interactive process with employees in connection with religious accommodation.
While adopting some features of disability accommodations, such as requiring employers to engage in an interactive process, the new standard for religious accommodation falls short of ADA accommodation requirements. This new standard will be highly fact specific and balance the religious beliefs of the employee against the costs related to the conduct of the employer’s business. It remains to be seen how the new standard under Groff will affect religious accommodation claims, and how the courts will interpret this new standard.
This article was prepared by Lloyd Gosselink’s Employment Law Practice Group: Sarah Glaser is the Chair of the Firm’s Employment Law Practice Group and Michelle White is an Associate in the Firm’s Employment Law Practice Group. If you have any questions related to this article or other employment law matters, please contact Sarah at 512.322.5881 or email@example.com, or Michelle at 512.322.5821 or firstname.lastname@example.org.