EEOC Guidance Spotlights Pregnancy Discrimination in the Workplace

With the passage of the Pregnancy Discrimination Act of 1978, Congress made it clear that discriminating against pregnant employees violates Title VII of the Civil Rights Act of 1964 (Title VII). Courts have since split on how to address the countless issues employers have faced involving pregnant employees. In response, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued enforcement guidance to employers clarifying how Title VII and the Americans with Disabilities Act (ADA) interact to protect pregnant employees.

Pregnancy Discrimination Guidance Overview

EEOC’s new guidance emphasizes that employers must treat women affected by pregnancy, childbirth or related medical conditions the same as all other employees who are similar in their ability or inability to work. Workers are protected from discrimination based on current pregnancy, past pregnancy and the potential for future pregnancy.

• Current Pregnancy. An employer may not fire, refuse to hire, demote or take any other adverse action against an employee if pregnancy, childbirth or a related medical condition is a motivating factor in that decision. This is true even if the employer believes it is acting in the employee’s or the fetus’s best interests. Of course, the employer must know of the pregnancy before such discrimination can occur.
• Past Pregnancy. An employer may not discriminate against an employee based on a past pregnancy. Close timing between childbirth and an adverse employment action, for example, may give rise to an inference of illegal discrimination.
• Potential Pregnancy. An employer may not discriminate based on an employee’s intent or potential to become pregnant or her decision to use contraceptives. Further, an employer may not treat men and women differently based on their intention to have children.
• Related Medical Conditions. An employer may not discriminate against an employee because of a medical condition related to pregnancy and must treat the employee the same as similarly situated, non-pregnant employees with medical conditions. For example, because lactation is a pregnancy- or childbirth-related medical condition, an employer may not discriminate against an employee because of her need to take breaks to express breast milk. Lactating employees must have the same freedom to address lactation-related needs that other workers would have to address other similarly limiting medical conditions.

Pregnancy-Related Disabilities

The new guidance addresses pregnancy discrimination with reference to Title VII, which prohibits discrimination in employment on the basis of sex, because women are the only employees who can become pregnant. The EEOC also addresses pregnancy discrimination with reference to the ADA because, although pregnancy itself is not a disability, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.

According to the EEOC, if an employee is physically unable to perform her job because of her pregnancy-related condition, the employer must treat her in the same manner with respect to potential ADA accommodations and access to benefits as it treats other similarly situated, non-pregnant employees. If, for example, the employer provides light-duty work as a benefit to non-pregnant employees with back pain resulting from injury, the employer must grant light duty to similarly situated pregnant employees. Further, according to the EEOC, an employee who suffers from a disability as a result of pregnancy is entitled to a reasonable accommodation under the ADA. The EEOC emphasizes that under the ADA as amended no requirement exists that an impairment last a particular length of time to qualify as a disability.

Medical and Parental Leave

The EEOC suggests that employers distinguish carefully between pregnancy-related medical leave and leave for purposes of bonding with a child or providing care of a child (parental leave). Pregnancy-related medical leave can be limited to women affected by pregnancy. Parental leave, however, must be provided to men and women on the same terms. If an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

As with accommodations for light-duty work, an employer must grant requests for extended leave to employees affected by pregnancy-related medical conditions if the employer grants such extended leave to non-pregnant employees under similar circumstances. The guidance also notably states that a policy restricting leave might have a disparate impact on pregnant women. For example, according to the EEOC, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment may disparately impact pregnant employees. This, however, is quite a controversial assertion, especially given that other federal and state leave rules by statute commonly restrict available leave to individuals who have been employed with the employer for 12 or more months (e.g., the federal Family and Medical Leave Act).

Health Insurance

The EEOC guidance explains that employers who offer employees health insurance must include coverage of pregnancy, childbirth and related medical conditions. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. Further, the plans may not discriminate between pregnancy-related conditions and similar, non-pregnancy-related conditions.

Best Practices

The EEOC guidance also outlines alleged employer “best practices,” some of which go well beyond federal nondiscrimination requirements. Some of these suggested practices include the following:

• Conduct employee surveys and review employment policies and practices to identify and correct any policies or practices that may disadvantage women affected by pregnancy, childbirth or related medical conditions.
• Respond to pregnancy discrimination complaints efficiently and effectively. Investigate complaints promptly and thoroughly. Take corrective action and implement preventive measures as necessary to resolve such situations and prevent problems from arising in the future.
• Ensure that job openings and promotions are communicated to all eligible employees.
• Make hiring, promotion and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy, childbirth or related medical conditions.
• Disclose information about fetal hazards to applicants and employees and accommodate resulting requests for reassignment, if feasible.
• If the company has a restrictive leave policy, evaluate whether it disproportionately impacts pregnant workers.
• Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related disabilities and for granting accommodations, where appropriate.

The new guidance comes in the midst of controversy involving a case currently pending before the U.S. Supreme Court. See Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W. 6302 (July 1, 2014). The decision to publish this guidance before the Supreme Court hears the Pregnancy Discrimination Act case next term drew criticism from the two Republican commissioners at the EEOC. Expect the Supreme Court to provide further guidance concerning the scope of the Pregnancy Discrimination Act in 2015.

To view a copy of the EEOC Enforcement Guidance, click here.

To view a copy of the EEOC question-and-answer guide, click here.

To view a copy of the EEOC fact sheet, click here.

For questions about the EEOC guidance or other issues related to pregnancy discrimination and accommodations, please contact the authors or any other member of the firm’s labor and employment group.