Earlier this month, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a Q&A document about the guidance and a Fact Sheet for Small Businesses. The EEOC last issued guidance on pregnancy discrimination and related issues in 1983 – over 30 years ago.
A few things have changed since that time, including the EEOC’s increasing focus on accommodating pregnancy-related limitations under the Americans with Disabilities Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”). The EEOC’s priorities in this area are bolstered by other changes in the law, like the Patient Protection and Affordable Care Act, which requires employers to provide “reasonable break time” for nursing mothers.
The guidance reminds employers that they may not discriminate against an employee based on 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.
Key Takeaways for Employers
Specific employer takeaways from the guidance include:
- The PDA covers not only current pregnancy, but discrimination based on a past pregnancy and a woman’s potential to become pregnant.
- Lactation is treated as a pregnancy-related medical condition covered by the PDA.
- There are circumstances under which light duty work may be appropriate for pregnant workers.
- Parental leave (which is different from medical leave) must be provided to similarly situated men and women on the same terms.
Though the EEOC describes the new guidance as just “an update of longstanding EEOC policy,” disability law experts like David Fram from the National Employment Law Institute say that the guidance is “extremely far-reaching.”
In fact, Fram interprets the guidance to suggest that pregnant workers get a reasonable accommodation under the PDA, even if the condition is not a disability under the ADA. Fram also believes the EEOC is importing the disparate treatment analysis used in Title VII claims to the PDA.
To what extent the EEOC proceeds under this guidance, and whether Courts agree with the guidance, remain to be seen. In the meantime, employers should review the best practices section contained in the guidance to ensure that workplace policies, practices and procedures are in keeping with the relevant laws.