Illinois House Bill 8 (HB8) was approved by the House this past week with a 65-36 vote, and now moves on to the Senate.
It has a stated purpose, in part, “to provide reasonable accommodations to employees with conditions related to pregnancy or childbirth.” In case you were wondering, yes, there is already federal law (the Pregnancy Discrimination Act) and state law that forbids discrimination based on pregnancy regarding most aspects of employment: hiring, firing, compensation, assignments, promotions, layoff and other benefits, such as time off and insurance. Here are some highlights of what would change if HB8 is passed.
First, HB8 would amend the Illinois Human Rights Act to explicitly add pregnancy, which is defined to include pregnancy, childbirth and conditions related to pregnancy, to the list of protected classes from discrimination; a list that currently includes such classifications as race, age, sex, sexual orientation and religion. The act already has a pregnancy section that generally forbids discrimination against pregnant employees, so the significance of adding pregnancy to the list of anti-discriminatory classifications is perhaps somewhat symbolic. Historically, pregnancy discrimination laws were derivative of gender discrimination laws, and subsequent legislation has sought to identify pregnancy as its own basis of protection from discrimination with its own rights. More substantively, HB8 replaces the existing definition of “medical conditions of pregnancy” to “conditions related to pregnancy,” thus the bill broadens “conditions” to mean something less than would require a medical opinion to substantiate.
A major thrust of HB8 is to ensure reasonable accommodations are made for pregnant employees to ensure they can continue working without taking time off, which may be unpaid.
Much of what is defined as a reasonable accommodation in the bill’s language is consistent with a general understanding of making reasonable accommodations for pregnant employees under federal law, which also somewhat reflects accommodations for persons with disabilities.
Yet a very curious provision in the bill would give pregnant employees a right of refusal to accept “an accommodation that the applicant or employee chooses not to accept.” This language contains no limitation on the employee’s right to refuse an accommodation, no matter how reasonable it may be.
While other provisions in the act protect an employer from undue hardships in making reasonable accommodations where it is not practicable, the proposed language would signify a major shift from requiring the employer to offer a reasonable accommodation to allowing pregnant employees to choose, to some degree, a desirable accommodation.
An additional complicating factor to the reasonable accommodation section is that the burden is on the employer to prove it would suffer an undue hardship by offering an appropriate accommodation. Undue hardship is defined to mean “an action that is prohibitively expensive or disruptive.”
Therefore, the employer’s duty to find a reasonable accommodation would not necessarily end at the point of finding a lateral position or responsibilities for the employee. If the employee refused the accommodation, then the employer would then have to seek an acceptable alternative to the point that the accommodation would create a significant strain on the employer.
At what point the strain becomes “prohibitively expensive” is not clear, but the bill’s language suggests that the employer must accept less financial value from the accommodation arrangement so long as there is still some degree of value provided by it.
The language of HB8 may still be amended, and of course it has not yet been enacted. Due to the implications it has on employees and employers, however, it is certainly a bill worth watching.
• Brad Stewart is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Stewart devotes most of his practice to corporate and local government law. He can be reached at firstname.lastname@example.org.