Welcome back. It's Mark. Today we're talking about uh surrogacy protections for women. Most of us in the workplace understand the basics of pregnancy discrimination, even if we don't know the specifics of the laws. Basically, we understand that employers are not allowed to discriminate against uh women for getting pregnant, right? Pregnant women aren't aren't supposed to be fired or demoted or have responsibilities yanked away from them because they're going to be out of the office for a while, right? Simple enough. However, there are some pretty shocking gray areas in the law when it comes to surrogacy parenting and caregiving. First, let's look at the landscape, the language of the basic federal laws that protect against pregnancy discrimination, namely the Pregnancy Discrimination Act, the American Disabilities Act, and the Feminine Medical Leave Act. Title VII was originally enacted as part of the Civil Rights Act of 1964. It put in place the now familiar rules that employers cannot discriminate against employers on the basis of race, color, religion, sex, or national origin. In 1976, the Supreme Court ruled that on the basis of sex did not include any protections for pregnancy. In response, Congress enacted the Pregnancy Discrimination Act in 1978. The PDA expanded the protections of Title VII to also prohibit employment discrimination on the basis of pregnancy, childbirth, and related medical conditions. However, the legislatures chose some interesting language specifically clarifying that Title VII prohibits discrimination because of sex or on the basis of sex and define this as follows. The terms because of sex or on the basis of sex include because of or on the basis of pregnancy, childbirth or related medical conditions in women affected by pregnancy, childbirth, or related medical conditions. Thanks, Congress. Before we look at the impact on pregnancy via surrogacy, it's important to understand how the Pregnancy Discrimination Act works together with the Americans Disabilities Act. Similar to Title VII and Pregnancy Discrimination, most of us understand generally that employers are also not allowed to discriminate against employees with disabilities. But again, let's look at the nuance of the specific language of the ADA and how it applies. First, who has a disability under the law? The legal definition of disability under the ADA is much broader than many people realize. Under the ADA, a person is legally defined as a disabled in three situations. One, if they have a physical or mental impairment that substantially limits a major life activity. Think about like working. If they have a record of such impairment, think about having a long medical condition. And three, if they are regarded as having such impairment, think about someone with AIDS or some condition, and whether they have it or not, people are going to how they react to that. Working is considered a major life activity, and therefore this means that any medical condition that impacts your ability to work, to do your job, falls under the purview of the ADA protections. So if you have a bad back and can't sit for a long period, you're covered by the ADA. Anxiety, depression, covered. Your condition also can be temporary and still qualify you as legally disabled under the ADA. Having surgery, injury, chemotherapy, treatment, rehab for addiction, you're most likely covered. Under the ADA rules, if a person has a disability, it is illegal for an employer to discriminate against them due to that disability. What does this mean in practice? If you have a disability, then you can't be fired. Well, no, not exactly. It means that if you are able to perform your job with a reasonable accommodation, then the employer is required to provide you with reasonable accommodations to do your job. What is a reasonable accommodation? It can be pretty much anything. It might be a restriction on how much a person can lift or carry. It might be a scheduling accommodation for someone to see their doctor or go to physical therapy. It might be limiting exposure to an environment or even to a person. And I've done this before limit people to very toxic people. People can trigger people if they have a medical condition like anxiety or asthma, think of perfumes. Or it might be providing a person with a standing desk or allowing them to take breaks to move around. Work from home is a big one these days. Many people, for many, many varieties of medical conditions, are requesting, as an accommodation, that they be allowed to work from home, either completely or more frequently, as employers are instituting return to office policies. Every medical condition and situation is unique, and therefore every reasonable accommodation may be unique. There are no bright line rules about what is or is not a reasonable accommodation. In practice, the goal is to argue that the requested accommodation is as simple as possible or easy for the employer to implement. If the employer decides they want to fight the employee on a requested accommodation, the onus and burden is on the employer to come up with some argument as to why the requested accommodation would be disruptive to the company or overly onerous for the employer to implement. Employers like to use the phrase, quote unquote, undue hardship when they want to fight a requested accommodation. It's a pretty broad term covering a lot of areas. Now let's move to the FMLA. The FMLA, the Medical Leave Act, allows anyone who has worked for their employer for at least 12 months and 1,250 hours in the past year. That's a continuous rolling 12 months, by the way, to take up to 12 weeks of leave unpaid so that they can take care of their own medical issue or an immediate family member with a medical issue. Pregnancy, childbirth, and adoption are all events that qualify for FMLA protection. FMLA is slightly different from Title VII, the PDA and the ADA protections, in that it primarily provides job protection for when a person returns from this leave. You can't be demotived or fired. Your employer has to give you your job back, keep your employment while you are on FLA, even though it's unpaid, meaning you keep your benefits such as health insurance. You are not suspended. FMLA, of course, is very often used by women going through pregnancy. It's a huge job protection. However, the biggest limitation of the FMLA is that there's no clear rule for how long it protects you after you return to work. Most employers are savvy enough to not fire you the week after you get back from your maternity leave. However, I've had cases where, in fact, they were fired one week after returning from leave. In those cases, usually so. It gets more difficult to connect a demotion or termination to FMLA retaliation the longer a person has been back from their leave. Next, now that you know the basics, common sense tells us that the Title VII, the PDA and protections that women, quote, are affected by pregnancy, cannot be discriminated against, are often going to flaw to flow simultaneously, concurrently, with the ADA and FMLA. Obviously, pregnancy itself can impact a person's ability to work, and pregnant individuals may need to request accommodations both during and after pregnancy. And there are accommodations for the PDA for pregnancy under the PDA, the Pregnancy Discrimination Act. For example, requesting accommodation lactation breaks and lactation space is commonly presented as a post-pregnancy accommodation request if the employer was making life difficult for the new parent. Today, a woman who just had a baby is going to be covered by all three laws and also usually similar state laws, which can be more protectionary of the employee. But this wasn't always the case. Until recently, it was unclear whether pregnancy was only protected by seven or whether it was also a medical condition that deserved ADA protections. The Supreme Court addressed this issue in a March 2015 case of Young versus United Parcel Service. In that case, a young, a pregnant UPS driver who delivered packages, requested a 20-pound lifting restriction as an accommodation during her pregnancy. UPS drivers are normally expected to lift up to 70 pounds. UPS initially denied this accommodation request, labeling it as a disability request, and arguing that Ms. Young wasn't disabled. She was just pectored. UPS argued that it was fully compliant with federal laws because it allowed ADA accommodations to individuals who suffered from a disability. The lower court and appellate courts agreed with UPS, holding that UPS has crafted a pregnancy blind policy that is at least facially a neutral and legitimate business practice and not evidence of UPS, UPS's discriminatory animus towards pregnant workers. That's nonsense. Thankfully, for all of us, the Supreme Court straightened that out in the 2015 Young decision authored by Justice Breyer. The Supreme Court pointed out before Congress passed the Pregnancy Discrimination Act, the EOC issued guidance, that's Equal Employment Opportunity Commission, stating that disabilities caused or contributed to by pregnancy are, for all job-related purposes, temporary disabilities, and that the availability of benefits and privileges shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities. In a concurring opinion, Justice Alito emphasized that the Pregnancy Discrimination Act language contains two separate and distinct clauses. First, because of or on the basis of pregnancy, childbirth, related medical conditions, and second, and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes. Justice Alito pointed out that the first clause of the PDA is alone sufficient to make it clear that any employer is guilty of unlawful employment practice if it intentionally treats pregnant employees less favorably than others who are similar in their ability or inability to work. But also that the second clause does not merely explain the first, but adds a further requirement of equal treatment, irrespective of intent. Thus, the two clauses are each a potent, separate, and standalone cause of action when analyzing claims for pregnancy discrimination and together. This means that employers are required to accommodate pregnant women, of course, and those affected by related medical conditions to the same extent they accommodate other workers. Now, this leaves an open question of what because of or on the basis of pregnancy or affected by pregnancy could mean in the context of surrogacy pregnancy. It seems logical that a woman who carries a baby as a surrogate should be protected, but this is surprisingly not yet fully clear. There is at least one case so far that agrees. The Gonzalez versus Mary International case in California in 2015, which held that Mary Gonz Gonzalez, who gave birth as a surrogate mother, was protected and must be allowed an accommodation that she was either was entitled to for lactation breaks. This case only exists because Mary Gonzalez is employer, Marriott argued that she should not be allowed to take lactation breaks after a brief period because she had been a surrogate. Marriott argued that she was not disabled and was not feeding a child at home. The California District Court agreed with Ms. Gonzalez, noting that she was affected by pregnancy-related conditions and therefore entitled to protections under the PDA. This gives us some information, but unfortunately, the overall question of what protections surrogacy carrying mothers possess is still not fully answered. Even more unsure is what protections will be provided to employer employees who use surrogate to carry their children. It's an evolving legal landscape, but it's going to be an interesting one as surrogacy becomes more common and accessible in the United States. The line between the PA protections and accommodations and ADA protections and accommodations can be very blurry. It's difficult to draw a distinction between simply a medical condition and a medical condition related to a pregnancy. The courts are leaning towards agreeing that lactation accommodations are sufficiently related to pregnancy, but of course there are many, any number of other medical conditions that women may experience post pregnancy. However, theoretically, it will be difficult or perhaps impossible to assert such protections for a new mother who has a child, but the child was carried by a surrogate. Are these comp mothers completely unprotected under federal law from employment discrimination? Yes. New parents, including parents of surrogate or adopted children, are typically going to be protected by the FMLA, but in practice, this is often limited to job protection after the leave. The bigger question is going to be on what on the on the job employment protections these new parents have and not just around a leave. Some courts are still starting to approach whether Title VII protections should include caregiving discrimination, sometimes referred to as sex plus discrimination. However, currently Title VII does not contain any explicit protections for parents or caregivers, or clarity on whether sex plus constitutes a separate cause of action under Title VII. Remember, sex plus or sex discrimination includes gender discrimination, which per the PDA now includes pregnancy. Thus, under the law, sex refers to gender, which also refers to pregnancy. Our laws are wonderfully simple. No, they're not. Instead, employed parents have to look to a hodgepodge of FMLA and ADA rules to try to cobble together accommodation requests and discrimination protections. All this is to say that our employment legal landscape is constantly evolving, hopefully in a good way. Thank you for allowing me to be service.