The Equal Employment Opportunity Commission (EEOC) recently issued its “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” It was no minor undertaking. According to the EEOC’s Questions and Answers about the Guidance, it “updates prior guidance on this subject in light of legal developments over the past thirty years.” This Guidance comes as little surprise. As we previously reported here, pregnancy discrimination has been receiving increasing attention from the EEOC as well as state legislators.
The prime focus of the Guidance is on the Pregnancy Discrimination Act (PDA). Enacted in 1978 as an amendment to Title VII of the Civil Rights Act of 1964, the PDA prohibits discrimination in employment based on pregnancy, childbirth, or related medical conditions. Regarding the scope of its coverage, the Guidance explains that the PDA protects current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.
While the Guidance includes a number of interesting points, of particular note are the following:
- Concerns About Ability to Perform Job. Employers sometimes express concerns about a pregnant individual’s ability to perform her job. The EEOC warns in the Guidance, however, that although pregnant or fertile women might be excluded from certain jobs if there is a bona fide occupational qualification (BFOQ), this defense “is an extremely narrow exception” that “cannot be based on fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”
- How Long Is the Employee Protected? Another issue employers often face is how much time one can be “past” pregnant and still be protected. It depends, advises the EEOC, and “[a] lengthy time difference between a claimant’s pregnancy and the challenged action will not necessarily foreclose a finding of pregnancy discrimination if there is evidence” of discriminatory animus. In fact, a very recent case from the U.S. District Court for the Southern District of New York addresses this issue. In Albin v. LVMH Moet Louis Vuitton, Inc., a judge denied a motion to dismiss a discriminatory failure-to-promote claim on the basis of gender, finding that the plaintiff belonged to the protected class where an adverse employment action could be considered to have been in the making three and a half months after the birth of her child. See 12-cv-4356 (S.D.N.Y. July 8, 2014). The court observed that, in the Second Circuit, generally, women are protected “approximately four months from the date of birth,” but whether they are protected depends both on the particular facts alleged as well as the timing of the adverse employment action “‘and when it is first set in motion.’” Indeed, how time is measured matters, as the court explained:
[I]t is not instantly clear from what date the alleged discrimination should be judged. If the discrimination originated from [the] [p]laintiff’s initial email expressing interest in the managerial position, then the discriminatory act in question occurred just three and a half months after she gave birth. However, if the discriminatory act is not measured until either the date of hire of the other candidate, or the day [the] [p]laintiff received notice of her rejection, then the act in question transpired six or six and a half months from the date of birth, respectively. Therefore, identifying when the adverse employment action occurred is likely necessary to determine whether [she] is still considered affected by her past pregnancy.
The court picked the first of these possible scenarios to declare that the plaintiff “is comfortably situated among similar pregnancy discrimination cases.”
- Same Treatment as Others. The PDA, as the Guidance notes, also mandates that “individuals affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Thus, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” While an undue hardship defense to offering an accommodation is still available, as with disabilities, in practice this might be difficult to establish. Employers should proceed with caution, not automatically assuming that certain changes to the way things are normally done would be too burdensome and therefore not required. Moreover, the Guidance reminds employers that “[w]hile pregnancy itself is not a disability, pregnant workers and job applicants are not excluded from the protections of the ADA.” The EEOC further reminds employers that “[c]hanges to the definition of the term ‘disability’ resulting from enactment of the ADA Amendments Act of 2008 (ADAAA) make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”