Illinois Human Rights Act Amended to Increase Pregnancy-Related Protection
Effective January 1, 2015, a recent amendment to the Illinois Human Rights Act (the “Act”) adds pregnancy to the list of characteristics protected from discrimination. “Pregnancy” includes pregnancy, childbirth, and conditions related to pregnancy or childbirth, expanding the Act to apply to pregnancy, childbirth, and postpartum conditions.
The Act currently prohibits employers from refusing to hire, promote, renew employment, discharge, or discipline employees on the basis of pregnancy. The amended Act will also prohibit employers from denying “reasonable accommodations” to employees (including part-time, full-time, or probationary employees) and job applicants that are new or expectant mothers. The Act requires employers provide pregnant employees the already-familiar “reasonable accommodation”, which requires employers to make reasonable modifications or adjustments to the job application process, the work environment, or a position to enable “an applicant or employee affected by pregnancy . . . to be considered for the position . . . or to perform the essential functions of that position.” The amended Act provides a non-exhaustive list of typical accommodations, which includes: more frequent or longer bathroom breaks, providing private non-bathroom space for expressing breast milk, assistance with manual labor, light-duty, job restructuring, and modified work schedules.
Employers must participate in a timely, good faith and meaningful exchange with an employee in order to evaluate and implement reasonable accommodations. An employer cannot force an employee to accept a reasonable accommodation or to take leave if another reasonable accommodation can be provided. Additionally, employers are not required to create new or additional employment opportunities to accommodate pregnancy, unless the employer would do so for other employees who need accommodations.
Despite the general prohibitions contained in the Act, employers are allowed to require medical certification for the requested accommodation(s) but they may only require the following information: (i) the medical reason for the accommodation, (ii) a description of the accommodation, (iii) the date the accommodation became medically necessary, and (iv) the approximate time the accommodation will be required.
An employer may also refuse to provide accommodations if such accommodations would impose an “undue hardship” on the ordinary operation of business. An accommodation causes “undue hardship” when it is “prohibitively expensive or disruptive.” To determine whether an accommodation constitutes an undue hardship, the following factors will be considered:
- the nature and cost of the accommodation;
- the financial resources of the facility, the number of employees at the facility, and the financial impact on the operation of the facility;
- the financial resources of the employer, the size of the business, and the number, type and location of the facilities; and
- the composition, structure, and functions of the employer.
The employer bears the burden of proving a requested accommodation constitutes an undue hardship. Further, the fact an employer has provided or would be required to provide a similar accommodation to a similarly situated employee creates a presumption that an accommodation is not an undue hardship.
As a final matter, the Act requires employers to post a notice of the employee’s rights prepared by the Illinois Department of Human Rights in a conspicuous location, as well as include such rights in an employee handbook.
While the amendments aim to increase the protections afforded to pregnant employees and new working mothers, the Act does not require employers to take extraordinary measures to accommodate employees. The key to the new law is reasonableness, and there are numerous ways in which an employer can accommodate new and expectant mothers with minimal workplace disruption. In light of the changes to the Act, employers should evaluate whether any employee requires reasonable accommodation and begin a dialogue regarding the provision of the same.