Pregnancy discrimination is often motivated by concern—pregnant women don’t need to be stressed—or chauvinism—pregnant women should take leave. In fact, though, those attitudes are discriminatory. And the plot thickens if a disability or FMLA leave is involved. EEOC’s recent guidance helps employers figure out where they stand.
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Pregnancy discrimination is often motivated by concern—pregnant women don’t need to be stressed—or chauvinism—pregnant women should take leave. In fact, though, those attitudes are discriminatory. And the plot thickens if a disability or FMLA leave is involved. EEOC’s recent guidance helps employers figure out where they stand.
On July 14 the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on pregnancy discrimination accompanied by an extensive and practical Q&A. The new guidance, the first to address pregnancy discrimination since 1983, focuses on how the 2008 amendments to the Americans with Disabilities Act (ADA) may apply to employees with pregnancy-related disabilities.
Is EEOC guidance the law?
Technically, no, it’s EEOC’s interpretation of the law. The EEOC does not have the authority to make law. However, the EEOC can enforce its guidance, and courts generally give deference to the Guidance. So, best practice is to treat The Guidance as a requirement.
The guidance sets out the fundamental requirements of the Pregnancy Discrimination Act (PDA) (which amended Title VII in 1978). That is, 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 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.
The related question-and-answer document offers very practical examples of what the EEOC requires of employers. Here are several of the most interesting entries; the entire guidance may be accessed here.
Same-Sex Couples Tricky to Deal With? Start figuring it out on Tuesday, August 26, with a new interactive webinar, Employee Benefits for Same Sex Couples: FMLA Eligibility, Healthcare Coverage, Taxes & Other Post-Windsor Updates. Learn More
What workplace actions are prohibited under the Pregnancy Discrimination Act (PDA)?
Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).
Ability or Intention to Become Pregnant
Does the PDA protect individuals who are not currently pregnant based on their ability or intention to become pregnant?
Yes. An employer is prohibited from discriminating against an employee because she has stated that she intends to become pregnant.
In addition, the PDA’s protection extends to differential treatment based on an employee’s fertility or childbearing capacity. Thus, sex-specific policies restricting women from certain jobs based on childbearing capacity, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer’s concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions. Sex-specific job restrictions can only be justified if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business.
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Health and Safety Concerns
Will an employer violate the PDA if it takes an adverse action against a pregnant worker based on concerns about her health and safety?
Yes. Although an employer may, of course, require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs are unlawful, even when an employer believes it is acting in an employee’s best interest (for example, by moving her to a less stressful job).
In tomorrow’s Advisor, more on pregnancy discrimination and the EEOC Guidance, plus we announce a timely new webinar about benefits for same-sex couples in the workplace.