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This is the final blog in our series on club considerations for employee (player) leave as it relates to pregnancy, childbirth, foster, adoption and any other related family planning reasons. As we discussed in our first blog, employers (clubs) must understand the role of the Collective Bargaining Agreements (CBA), Player Contracts, and League policies (found in manuals and handbooks). Next, in our second blog, we explained that in addition to the CBA’s, league manuals, and player contracts, clubs must understand the interplay of the Family Medical Leave Act (FMLA).

In addition to the FMLA, clubs must also understand the role of another important set of federal laws: Title VII, the Americans with Disabilities Act (ADA), and the newly enacted Pregnant Workers Fairness Act (PWFA). Now, before we get into the details of these three statutes, remember that this blog series focuses on the specific topic of employee leave. We must note that these statutes apply to all employees (back office and on the pitch), and cover situations beyond pregnancy. However, for the purposes of this blog we are just going to focus on leave for pregnancy.

As we’ll see, these three statutes are interrelated. Clubs must be well-versed in the relationship between Title VII, the ADA and the PWFA. Prudent clubs will consult with counsel as it relates to these federal laws, and also any related state or local laws. (NOTE: This blog covers the federal statutes only.)

TITLE VII: ON THE BASIS OF SEX INCLUDES PREGNANCY

Briefly, Title VII protects employees against discrimination based on (1) religion, (2) national origin, (3) genetic information, (3) race, (4) color, and (5) sex. (NOTE: Title VII carries a 15 employee threshold. Clubs should consult with counsel as to how to properly assess the headcount. Title VII carries its own “joint employer” analysis.)

Title VII itself specifically states that the phrase, “on the basis of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions…”

What Does this Have to do with My Club?

An employer (club) cannot make an adverse employment decision because pregnancy related leave.

• Beware of Disparate Impact. There are two forms of discrimination: (1) disparate treatment and (2) disparate impact. Disparate treatment requires a showing of intent by the employer. This is usually demonstrated by an overt action or communication from the employer that evidences the discrimination. These situations are easy to spot. However, the second form of discrimination is a bit trickier. This is where well-meaning employers can get into trouble. The second form of discrimination is under a Disparate Impact theory. Under this theory, intent is not a necessary element. In order to provide a disparate impact claim, an employee (player) must put forth facts that show (1) a specific employment practice that may be neutral on its face, but (2) causes substantial adverse impact on a protected group. It follows that Clubs could have leave policies that seem super fair and neutral on the surface, but actually have a discriminatory impact. These policies may even have the most well-meaning intent. However, upon application, sometimes these policies have an adverse impact on a group of individuals. Since this blog focuses on parental and pregnancy leave, let’s take a look at an example of how this could play out:
• EXAMPLE OF PARENTAL LEAVE POLICY VIOLATIVE OF TITLE VII UNDER DISPARATE IMPACT THEORY
  Soccer Club FC institutes a parental leave policy that provides for the following:Employees who give birth are eligible for 8 weeks of paid leave at 100% of their salary.Employees who give birth are entitled to an additional 4 weeks of paid leave at 100% of their salary to bond with the child.All employees who did not give birth, but whose spouse gave birth is entitled to 12 weeks of paid leave at 100% of their salary to bond with the child. This seems like a super progressive and well-intentioned policy. However, if we take a look at this policy in practice, we’ll see that there is a disparate impact on same-sex couples, couples who adopt, or couples who are not married (the policy references “spouse”). Potential DiscriminationMarital Status. Now, this seemingly neutral policy risks discriminating against some groups of people: First, it specifies that in order for an individual who did not give birth to get paid time off, they must be married. While marital status is not a protected class under Title VII, it is under some state statutes, like New York. Sexual Orientation. Since the 2020 Supreme Court decision in Bostock, “sex” now includes gender identity and sexual orientation. The above policy risks having a disparate impact on individuals who do not give birth- namely same-sex couples. For instance, if a couple adopts or uses a surrogate, they would be entitled to unpaid leave under FMLA, but not paid leave under this policy. Disabilty. If an individual is not able to give birth due to a disability, then they would not be afforded paid leave under this policy.

Prudent clubs will assess the potential discriminatory impacts of their policies, and consult with counsel.

PREGNANT WORKERS FAIRNESS ACT AND THE ADA

In addition to ensuring club policies do not have a disparate impact, clubs must be aware of the the ADA and the newly effective PWFA. This law came into effect on June 27, 2023. Before, employers (Clubs) just needed to review the ADA when providing an accommodation to an employee who is pregant or gave birth. NOTE: Leave from employment can be an accommodation.

We will analyze these statutes together, as the PWFA incorporates some aspects of the ADA. As we will discuss, the PWFA is an expansive statute that provides protection for employees who give birth well beyond the ADA.

What is the PFWA?

The PFWA identifies five (5) discriminatory practices by employers as it relates to pregnancy.

• No. 1: Failure to Provide Reasonable Accommodation. It unlawful for a Covered Entity (Club) to not make a Reasonable Accommodation to the Known Limitations related to the pregnancy, childbirth, or related medical conditions of a Qualified Employee, unless the Covered Entity can demonstrate that the accommodation would impose an Undue Hardship on the operation of the business (Club).
• No. 2: Require an Employee (Player) to Accept an Unreasonable Accommodation. Clubs cannot require a Qualified Employee affected by childbirth, pregnancy or related medical condition to accept any accommodation other than a reasonable accommodation “arrived through the Interactive Process.”
• No. 3: Deny Employment Because of Reasonable Accommodation. Clubs cannot deny employment to a Qualified Employee if the denial is based on the need of the Club to make a reasonable accommodation.
• No. 4: Require a Qualified Employee to Take Leave Instead of Providing Another Reasonable Accommodation. Clubs cannot require a Qualified Employee to take leave as an accommodation if there is another reasonable accommodation available that is not leave.
• No. 5: Retaliation. Clubs cannot retaliate against a Qualified Employee requesting or using a Reasonable Accommodation under this law.

What Do These Words Mean?

Now, these five unlawful practices include words that carry legal weight. Let’s look at what the crucial phrases mean. (NOTE: In an effort to assist the reader, these words are bolded above.)

• Covered Entity. The PFWA directs us to look at Title VII for direction as to whether the law applies to the entity. As discussed above, Title VII applies to entities with 15 or more employees. Vigilgent clubs will consult with counsel to confirm their Covered Entity status.
• Reasonable Accommodation. The PWFA instructs us to refer to the ADA when evaluating Reasonable Accommodations. Reasonable Accomodations include, among other things, relocation, modified work schedule, interpreters, and equipment modification.
  • NOTE: Under the ADA, leave for a definite amount of time, can be considered an accommodation. While there is not yet case law or a determination as to whether leave is an accommodation under the PFWA, we can anticipate parallels to be drawn from the ADA.
• Undue Hardship. The statute points us to the ADA for this definition. Employers are required to engage in the interactive process and provide a reasonable accommodation unless such accommodation would prove to be an undue hardship for the organization. There is no set definition of such hardship. Instead, a variety of factors are considered when assessing whether an undue hardship exists. The following factors are considered:
  • nature of the accommodation and the net cost
  • overall financial resources of the facility
  • overall financial resources of the covered entity
  • type of operation of the covered entity
  • geographic separateness and administrative or fiscal relationship of the facility and the covered entity
  • impact of the accommodation upon the operation of the facility.
• Known Limitation. Under the PWFA, a “Known Limitation” means a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the employer.”
• Interactive Process. When faced with a request for an accommodation, employer must engage in the interactive process with the individual. (NOTE: The duty to engage in said process is not activated until the employee (player) requests an accommodation. With that being said, the EEOC provides guidance when the employer is on the hook for engaging in the process absent such request.)
• Qualified Employee. The PFWA provides a two-part definition. A Qualified Employee is: (1) An employee or applicant or with or without a Reasonable Accommodation (see above definition), can perform the essential functions of the employment position. NOTE: This is the same definition of a Qualified Employee under the ADA.(2) And any individual who (a) cannot perform the essential functions of the jobs for a temporary period; (b) the essential functions of the job could be performed in the near future; AND (c) the inability to perform the essential functions can be reasonably accommodated.NOTE: This is a drastic difference from the ADA definition of a Qualified Employee. Employers must now look beyond the ADA when accommodating an employee with a pregnancy-related disability. A few things that are worth mentioning. First, the phrases “temporary period” and “near future” are not defined. The EEOC is tasked with drafting regulations to accompany this law. We anticipate and hope for some clarity as it relates to these two phrases. ANOTHER NOTE: Employers (Clubs) must understand the “essential functions” of each position of their company. When building out a team, it is crucial for entities to draft accurate job descriptions for each role. For instance, the essential functions of a player are vastly different from the essential functions of the general manager. Conscientious clubs will take the time to draft job descriptions that will be the playbook for assessing accommodations.

BOTTOM LINE

The PWFA provides expanded coverage for leave and accommodation that go well beyond the ADA. As discussed above, the statute still needs clarification from the EEOC, but the gist of the law is pretty clear. Employees who carry a child and/or give birth are afforded greater protections over and above the ADA. Clubs must be aware of this new law.

Parental leave is a topic that requires review of applicable policies and laws. As we discussed in this blog series, Clubs must review the following when crafting their policies and practices around pregnancy and child-related leave:

• Governing documents (CBA, Player Contracts, League Policy, Team Policy)
• Federal Law (FMLA, ADA, PWFA)
• State Laws
• Local Law (some cities have expanded family leave policies)

Successful organizations invest in drafting lawful and carefully tailored policies to ensure that the employees and thereby the organization is protected.