New guidance on pregnancy discrimination released

For the first time since 1983, the Equal Employment Opportunity Commission (EEOC) has issued enforcement guidance on pregnancy discrimination. The new guidance incorporates significant developments in the law during the past 30 years, including how the 2008 amendments to the Americans with Disabilities Act (ADA) may apply to employees with pregnancy-related disabilities.

The EEOC issued Enforcement Guidance: Pregnancy Discrimination and Related Issues on July 14. Besides the guidance, the agency released questions and answers about the guidance and a fact sheet for small businesses.

“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than coworkers similar in their ability or inability to work,” EEOC Chair Jacqueline A. Berrien said in releasing the guidance.

Berrien said that in spite of progress, the EEOC continues to see a significant number of charges alleging pregnancy discrimination. “This guidance will aid employers, jobseekers, and workers in complying with the Pregnancy Discrimination Act [PDA] and [the ADA] and thus advance [the] EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two antidiscrimination statutes,” she said.

The guidance sets out the PDA’s fundamental 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 employees who are similar in their ability or inability to work.

In addition, the guidance explains how the ADA’s definition of “disability” could apply to workers with impairments related to pregnancy. The question-and-answer document explains that the ADA prohibits employment discrimination on the basis of disability and requires covered employers to provide reasonable accommodations “to the known limitations of otherwise qualified employees and applicants for employment.”

“Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past,” the document states. “The ADA also covers pregnant workers who are regarded as having disabilities.”

Besides ADA issues, the new enforcement guidance discusses:

• The fact that the PDA covers not only current pregnancy but also discrimination based on past pregnancy and a woman’s potential to become pregnant;

• Lactation as a covered pregnancy-related medical condition;

• The circumstances under which employers may have to provide light duty for pregnant workers;

• Issues related to leave for pregnancy and medical conditions related to pregnancy;

• The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;

• The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;

• When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and

• Best practices for employers to avoid committing unlawful discrimination against pregnant workers.