Last month, the Equal Employment Opportunity Commission (EEOC) issued its written Enforcement Guidance on Pregnancy Discrimination and related issues. The Guidance, provided in the context of the Pregnancy Discrimination Act (PDA) and the Americans with Disability Act (ADA), supersedes the EEOC’s prior writings from 1983 and 1991, and applies to all employers with more than fifteen employees.
During the last 16 years, pregnancy discrimination charges filed with the EEOC have substantially increased—3,900 such charges were filed in 1997 and 5,342 such charges were filed in 2013. Discrimination is usually based on unfounded beliefs that pregnant women are not physically capable of working or that working may harm a fetus. The EEOC has clearly stated that employees cannot be discriminated against because they are, may be, intend to be, or were pregnant. Promotions cannot be denied to an employee because she may become pregnant in the future. Pregnant employees cannot be excluded from performing job duties (i.e., handling certain chemicals) out of an employer’s fear that the fetus may be harmed. Further, the same parental leave policies must be available to both male and female employees.
Pregnancy-related conditions may be disabilities under the ADA, and will require the granting of reasonable accommodation, such as granting more frequent breaks, keeping a bottle of water nearby, using a stool, modifying work schedules to accommodate morning sickness, and/or altering how job functions are performed. While a “normal” pregnancy does not constitute a disability under the ADA, it is a serious health condition under the Family Medical Leave Act (FMLA), entitling a pregnant employee to FMLA leave. The EEOC Guidelines address the “middle” ground, and state that employers must reasonably accommodate a pregnant employee with light duty or modified assignments, even when there is no pregnancy-related condition which can be considered a disability. This is a controversial issue, one that is pending before the United States Supreme Court, in the case of Young v. United Parcel Service, a case where a pregnant worker was denied light duty assignment because her doctor told her not to lift heavy packages. She claims that UPS told her that light duty was only available to employees with job-related injuries or to those disabilities recognized under the ADA.
Additionally, the new Guidelines find both breast-feeding and lactation are pregnancy-related medical conditions for which employees must be permitted to address in the same way as other limiting medical conditions. Therefore, an employer whose policies permit schedule changes or use of sick leave to attend doctor appointments or to address medical conditions must permit employees to utilize those policies for breast-feeding and lactation issues.
As before issuance of the Guidelines, an employee’s pregnancy, childbirth, or related medical condition cannot be a motivating factor in an adverse employment action. Employment policies should not include any policy that treats pregnant workers less favorably or demonstrates pregnancy bias. Policies should not more favorably treat employees (of either sex) who are not affected by pregnancy, but who have similar ability or inability to work. The Guidelines still permit neutral employment policies or practices which do not have disparate or disproportionate impact on pregnant employees, where it may be shown that they are job related and consistent with business necessity.