On July 14, the Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” This is the first comprehensive update the EEOC has provided on the subject since 1983. The guidance supersedes the earlier EEOC publication and incorporates significant developments in the law during the past 30 years.
In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008 to individuals who have pregnancy-related disabilities. Much of the analysis in the new guidance is an update of long-standing EEOC policies that set out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work.
Basic PDA requirements
The PDA requires covered employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees who are similar in their ability or inability to work. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave and health insurance benefits). Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, and potential pregnancy.
It’s unlawful to harass a woman because of pregnancy, childbirth, or a related medical condition. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive environment or results in an adverse employment decision (such as the victim being fired or demoted).
Workers with caregiving responsibilities
Discrimination against a worker with caregiving responsibilities violates Title VII of the Civil Rights Act of 1964 if it is based on sex, and it violates the ADA if it is based on a family member’s disability.
For example, an employer violates Title VII by treating a female employee with young children less favorably than a male employee with young children based on a belief that the mother should focus more on the children than on her career.
In addition, an employer violates the ADA if it takes an adverse action, such as refusing to hire or denying a promotion, against a mother of a newborn with a disability over concerns that she would take a lot of time off for the child’s care or that the child’s medical condition would impose high healthcare costs.
Benefits of employment
Employers must provide the same benefits of employment to women affected by pregnancy, childbirth, or related medical conditions that it provides to other persons who are similar in their ability or inability to work.
Light-duty policies. Employers have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant workers if they do the same for other employees who are similar in their ability or inability to work.
Leave. Although an employer may not compel an employee to take leave because she is pregnant as long as she is able to perform the job, it must allow women with physical limitations, including from pregnancy, to take leave on the same terms and conditions (e.g., provide them with the same amount of leave) as others who are similar in their ability or inability to work.
Medical benefits. The PDA requires employers that offer health insurance to include coverage of pregnancy, childbirth, and related medical conditions. Employers must provide the same terms and conditions for pregnancy-related benefits as it provides for benefits relating to other medical conditions.
Although pregnancy itself isn’t a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA. Amendments to the ADA made in 2008 make it much easier than it used to be to show that an impairment is a disability. A number of pregnancy-related impairments, such as carpal tunnel syndrome, gestational diabetes, sciatica, and preeclampsia, are likely to be disabilities even though they are temporary.
An employer may not discriminate against an individual whose pregnancy- related impairment is a disability under the ADA and must provide her with a reasonable accommodation if needed, unless the accommodation would result in significant difficulty or expense (undue hardship).
With the issuance of this new guidance, the EEOC is alerting all employers that the rules for dealing with pregnant employees in the workplace are changing. Not too long ago, it seemed pretty clear that unless an employee had some medical complications, a normal pregnancy was not considered a disability under the ADA, and in most cases, an employer did not have to make any accommodation for the pregnant employee.
Now, with the new guidance and the recent EEOC enforcement efforts, an employer needs to consider making reasonable accommodations for pregnant employees, even without any medical complications. Thus, if the employer had a practice of offering light-duty work to other employees with medical issues, then the employer may now be obligated to offer the same light duty to a pregnant employee.