EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

Posted September 03, 2014

On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidelines on the treatment of pregnant employees under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). The guidance is the EEOC’s first comprehensive update on the subject of pregnancy discrimination in over 30 years and is effective immediately.

In addition to the guidance, the EEOC released a fact sheet for small businesses as well as a Question and Answer document explaining the laws and policy changes. In doing so, the EEOC has clarified its position on a number of key topics related to pregnancy discrimination.

Extent of PDA Coverage

The EEOC’s guidance clarifies which individuals are covered by the PDA. According to the EEOC, the PDA prohibits discrimination based not only on an employee’s current pregnancy, but also on past pregnancies and an employee’s potential or intention to become pregnant in the future.

Additionally, the EEOC reinforced that the PDA covers all aspects of employment, including firing, hiring, promotions, health benefits and treatment, in comparison with non-pregnant persons in their similar ability or inability to work.

Medical Conditions Related to Pregnancy or Childbirth

The EEOC points out that the PDA prohibits employers from discriminating against women with medical conditions related to pregnancy or childbirth, and requires employers to treat them the same as other employees who are similar in their ability to work, but are not affected by pregnancy, childbirth or related medical conditions.

Significantly, the EEOC’s guidance states that lactation and breastfeeding are pregnancy-related medical conditions protected under the PDA. Accordingly, employers must ensure that employees have the same freedom to address lactation-related needs as other employees have to address other similarly limiting medical conditions.

For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.

Light Duty Policies

A significant portion of the EEOC’s guidelines focuses on light duty requirements for employers. According to the PDA, employers are required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees who are similar in their ability or inability to work. If an employer provides light duty assignments to any of its employees who are temporarily unable to perform their full duties, then similar accommodations should be made for pregnant employees who cannot perform their full duties.

The EEOC’s interpretation of the PDA does not require preferential treatment for pregnant employees. An employer does not violate the PDA when it offers benefits to pregnant workers on the same terms that it offers benefits to other workers who are similar in their ability or inability to work. Therefore, if an employer’s light duty policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers who are similar in their ability or inability to work.

Leave Requirements

The EEOC makes clear that employers may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes that it is acting in the employee’s best interest.

Under the PDA, employers must allow women with physical limitations resulting from pregnancy to have leave on the same terms and conditions as others who are similar in their ability to work. For example, an employer:

May not fire a pregnant employee for being absent from work if her absence is covered by the employer’s sick leave policy;
May not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirement on employees who seek leave for other medical conditions;
May not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
Must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability to work do so.

However, the PDA does not require employers to treat pregnancy-related absences more favorably than absences for other medical conditions.

Equal Parental Leave

The EEOC’s guidance also impacts fathers in the workplace. While employers may restrict leave related to pregnancy, childbirth or related medical conditions to the women affected by those conditions, they cannot discriminate between men and women when it comes to parental leave (leave for the purposes of bonding with or providing care for a newborn child).

Parental leave must be provided to similarly situated men and women on the same terms. For example, if an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot legally fail to provide an equivalent amount of leave to new fathers for the same purpose.

The ADA and Pregnancy

In its guidance, the EEOC reaffirmed its position on the ADA’s relationship with pregnancy. Although pregnancy itself is not considered a disability under the ADA, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the law. The EEOC points out that changes to the term “disability” resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for individuals with pregnancy-related impairments to demonstrate that they have a disability and are thus entitled to the ADA’s protection. Conditions only need to substantially limit a major life activity, and impairments of a short duration can qualify as a disability under the ADA.

Examples of pregnancy-related impairments that may qualify a pregnant individual as disabled under the ADA include, but are not limited to, carpal tunnel syndrome, sciatica, mandatory bed rest, depression, nausea, painful swelling and conditions that limit walking.

Accordingly, employers may not discriminate against an employee whose pregnancy-related impairment is a disability under the ADA, and they must provide employees with reasonable accommodations if needed because of a pregnancy-related disability, unless the accommodation would result in significant difficult or expense. Examples of reasonable accommodations include:

Redistributing or altering marginal or nonessential job functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
Modifying workplace policies to accommodate a worker’s pregnancy, including allowing more frequent breaks or allowing an employee to keep a water bottle at her workstation even if the employer generally prohibits keeping drinks at workstations;
Granting leave in addition to what an employer would normally provide under a sick leave policy;
Temporarily reassigning pregnant employees to light duty positions;
Purchasing or modifying workplace equipment, such as a stool for a pregnant employee who needs to sit while working, to accommodate pregnant workers; and
Modifying an employee’s work schedule to accommodate conditions related to pregnancy.

Best Practices

Included in the EEOC’s guidance are suggestions for best practices that employers may adopt to reduce their chances of pregnancy-related discrimination violations under the PDA and ADA. Employers should consult the guidance for advice on best practices related to hiring, promotions, employment decisions, employer policies, leave and other fringe benefits, terms and conditions of employment, and reasonable accommodations.

Significance for Employers

The EEOC’s guidance comes at a time of increasing focus on pregnancy discrimination. According to the most recent EEOC data, pregnancy discrimination claims increased by 46 percent between 1997 and 2011. Additionally, the U.S. Supreme Court recently agreed to hear Young v. United Parcel Service and decide whether the PDA requires employers who provide workplace accommodations to non-pregnant employees with physical limitations to also offer the same accommodations to pregnant employees who are similarly situated.

In light of the EEOC’s new guidelines and in anticipation of the Supreme Court’s ruling, employers should carefully review their existing policies and determine whether they sufficiently address pregnancy and pregnancy-related conditions.

This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.