Sunday, July 27, 2014

Takeaways from the EEOC's New Enforcement Guidance on Pregnancy Discrimination and Related Conditions

On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued its latest Enforcement Guidance on pregnancy and related conditions.  You can find a copy on the EEOC's website (eeoc.gov).  As expected, the EEOC has taken an expansive view of the protections offered by the Pregnancy Discrimination Act (PDA), and based on its interpretations, many employers may unknowingly be in violation of the law.

PDA Refresher

Congress passed the PDA in 1978 to clarify that sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII) includes discrimination based on pregnancy, childbirth, or related medical conditions.  The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.

The EEOC's Interpretation of PDA Coverage

The EEOC takes the position that the PDA prohibits discrimination based on:

  • current pregnancy;
  • past pregnancy;
  • potential or intended pregnancy, including reproductive risk and contraception use; and
  • medical conditions related to pregnancy or childbirth, such as lactation, breastfeeding, and abortion.

Similarly, the PDA prohibits harassment based on these factors.

Takeaways

Highlights of the EEOC's interpretation of the PDA include the following:

  • employers are obligated to treat pregnant employees temporarily unable to perform the functions of their jobs the same as it treats other employees similarly unable to perform their jobs.  In other words, an employer may not restrict light duty work to a class of employees (such as those who have been injured on the job) but prohibit pregnant women from working light duty.  It is important to note that a number of courts disagree with this interpretation;
  • an employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job;
  • a policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave, or a policy denying sick leave during the first year of employment, could have a disparate impact on pregnant women.  Once again, not all courts agree with this interpretation;
  • although pregnancy is not a disability under the Americans with Disabilities Act (ADA), most temporary impairments a pregnant woman could develop should be accommodated in the same manner an employer would accommodate employees with non-pregnancy related disabilities;
  • employers should modify their accommodation policies to specifically reference accommodations  based on pregnancy; and
  • employers must exercise caution when enforcing job requirements such as lifting restrictions.
 In light of the fact that a number of courts disagree with the EEOC's positions, employers should consult with counsel in the event pregnancy-related issues arise in the workplace.