On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued an enforcement guidance “Pregnancy Discrimination and Related Issues,” along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on the EEOC’s website.
This is the first substantial guidance issued by the EEOC on this subject since 1983. In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities. Significantly, the EEOC’s guidance is not binding law and ultimately it is up to federal courts to determine the scope of the PDA.
The guidance sets forth the fundamental PDA requirements: that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions, and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy. Among other issues, the guidance discusses the following topics:
- The PDA’s prohibition on discrimination covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant.
- Employers may not discriminate based on infertility treatments or the use of contraceptive devices.
- Employers may not discriminate against an employee based on lactation and breastfeeding needs; employees must be provided the same accommodations to address lactation-related needs that co-workers would have to address other similarly limiting medical conditions.
- An employer may not impose restrictions on a pregnant employee with the pregnancy being the basis, even if the employer believes the restriction is for the benefit of the employee or the fetus.
- Employers are not required to provide medical coverage for abortions. However, employers are not allowed to discriminate against employees based on either the decision to have an abortion or the decision not to have an abortion.
- Employers are not required to offer light duty to any of their employees; however, if light duty is offered to employees with other conditions, equivalent accommodations must also be offered to pregnant employees.
- If an employer offers health insurance benefit plans, those plans must treat pregnancy related medical costs and non-pregnancy related medical costs the same; employers cannot single out pregnancy related medical costs for disparate treatment.
- Employers should distinguish between leave related to any physical limitations imposed by pregnancy or childbirth and leave for purposes of bonding with a child and/or providing care for a child. Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, “parental leave” must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it should provide an equivalent amount of leave to new fathers for the same purpose.
- All policies, whether they relate to leave time, health insurance, light duty, etc., should be applied consistently across all employees.
Finally, the guidance provides suggested best practices for employers to adopt to avoid pregnancy-related discrimination – under the PDA and ADA – including, in the following areas: general employment practices and policies; hiring, promotion, and other decisions; leave and other fringe benefits; terms and conditions of employment; and reasonable accommodation.
Employers should review any applicable policies, procedures, practices, and training programs in light of the EEOC’s guidance.