On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued a detailed Enforcement Guidance on pregnancy discrimination and related issues (the Guidance). The Guidance addresses an employer’s obligations relating to pregnancy and pregnancy-related conditions under the Pregnancy Discrimination Act (PDA), which amended Title VII, the Americans with Disabilities Act (ADA) and other laws. The text of the Guidance is available here. Portions of the Guidance are summarized below.
Current pregnancy: The Guidance makes clear that there can be no finding of intentional discrimination against a pregnant applicant or employee if the decisionmakers are not aware of the pregnancy. However, knowledge of the pregnancy need not necessarily come from the pregnant employee. In certain cases, office gossip or the appearance of the employee may demonstrate decisionmaker knowledge. In addition, employment decisions based on stereotypes about applicants or employees who are pregnant is prohibited, such as refusing to hire a pregnant employee based on the assumption that she will leave after the child is born or not be committed to the job. The regulations also suggest that an employer may not make decisions based on unsubstantiated assumptions about how soon the applicant may need to go out on maternity leave. Furthermore, an employer's concern over the risk to a pregnant employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman who is pregnant or who has childbearing capacity.
Past pregnancy: The Guidance reiterates that discrimination based on an employee or applicant's past pregnancy is also prohibited. Such discrimination may be shown by an adverse action close in time after the birth of a child; however, close timing is not necessary for a finding of discrimination, particularly if the employer's explanation for the adverse action is not believable. A long period of time between the pregnancy and the adverse act decreases the likelihood that the decision is based on the employee's prior pregnancy, but it does not eliminate a potential claim that the decision was based on the employee's current child care responsibilities. If that is the basis, then discrimination under Title VII may be found if gender or other protected characteristic motivated the decision.
Intent to become pregnant: It is unlawful to discriminate against an applicant or employee because of her capacity to become pregnant. The Guidance notes that Title VII prohibits gender-based distinctions based on an employee's family status or intent or decision to have children. Therefore, the EEOC will consider questions to applicants or employees about their intent to become pregnant as evidence of discrimination where the applicant or employee becomes pregnant and thereafter adverse action is taken. Adverse action based on an employee's undergoing medical infertility treatments also is prohibited.
Insurance issues: Exclusion of all infertility coverage for all employees is gender neutral and does not violate Title VII, but exclusions of treatments that pertain only to one gender might violate Title VII. Additionally, employers may not discriminate against an employee because she uses contraceptives. Moreover, an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy (such as vaccinations, physical examinations, prescription drugs that prevent high blood pressure or lower cholesterol levels). A health insurance plan is facially discriminatory if it excludes prescription contraception but otherwise provides comprehensive coverage.
Pregnancy-related medical conditions: An employer must offer the same benefits for pregnancy-related medical conditions as it does for other medical conditions. In addition, employers may not discriminate against an employee who is lactating or breastfeeding, and must accommodate scheduling needs for the purposes of expressing milk to the same extent it accommodates requests for flexibility in scheduling for other "similarly limiting" non-incapacitating medical conditions. With respect to insurance, although discrimination based on costs associated with the medical care of employees' children would not be covered under Title VII, taking an adverse action, such as terminating an employee to avoid insurance costs arising from the pregnancy-related impairment of the employee or the impairment of the employee's child, could violate the ADA (if the employee's or child's impairment constitutes a "disability") or the Genetic Information Nondiscrimination Act (GINA), or the Employee Retirement Income Security Act (ERISA). Discrimination against an employee based on her decision regarding abortion is prohibited by Title VII. The Guidance states that under Title VII, an employer’s health insurance plan is not required to cover abortion except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion.
Accommodation/limitations on ability to work: An employer must treat a pregnant employee who is temporarily unable to perform her job in the same manner as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave or benefits. Similarly, the employer can impose the same conditions that it imposes on other employees, such as notification requirements or other protocols that do not relate to the cause of the employee's limitation. For example, a pregnant worker who needs changes in her schedule would be responsible for informing her supervisor and providing reasonable documentation if the employer requires that of employees who seek changes to their jobs for reasons other than pregnancy. If a pregnant worker requests the same modification that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee's request in light of whether the change would constitute an "undue hardship," since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to analysis of undue hardship. The Guidance, therefore, suggests that a temporary accommodation must be made for a pregnant individual in the same manner as for a disabled individual.
Leave policies: Parental and medical leave policies may not make gender-based distinctions. The Guidance provides examples of what the EEOC considers permissible and impermissible medical and parental leave policies under Title VII.
The Guidance notes that conditions such as preeclampsia or gestational diabetes may constitute pregnancy-related impairments that may be disabilities under the ADA for which reasonable accommodation may need to be made. Examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments include, but are not limited to: redistributing marginal (non-essential) functions that the employee is unable to perform due to the disability; altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting or bending requirements), modifying policies (i.e., excepting an employee with a pregnancy-related kidney condition from a policy prohibiting having liquid at the workstation), acquiring or modifying equipment or devices (i.e. a chair of a certain height), modified work schedules, leave and light duty.
Other laws affecting an employer's obligations with respect to pregnancy and pregnancy-related conditions include:
- Family and Medical Leave Act
- Executive Order 13152, which prohibits discrimination in federal employment based on parental status, and covers a biological parent, adoptive parent, foster parent, stepparent, legal custodian, a person who is in loco parentis, or a person who is actively seeking legal custody or adoption
- Patient Protection and Affordable Care Act, Section 4207 of which requires employers to provide reasonable break time for nursing mothers to express breast milk for a year after the birth of a child