July 21, 2014
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.
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:
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.