In July 2014, for the first time since 1983, the EEOC has released comprehensive guidance on the obligations imposed on employers under the Pregnancy Discrimination Act (“PDA”). The guidance reflects changes to the PDA, the current trends on EEOC’s enforcement practices, and the PDA’s interplay with statutes like the Americans with Disabilities Act (“ADA”). EEOC Chair Jacqueline Berrien stated that it was “ongoing pregnancy discrimination” that created the need for the updated guidance. Berrian said that “pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work.” Based on these statements, we believe the EEOC is serious about eliminating pregnancy discrimination in the workplace.
What is the Pregnancy Discrimination Act?
The PDA is an amendment to Title VII of the Civil Right Act of 1964. See 42 U.S.C. § 2000e(k). The PDA was specifically designed to address the stereotype that “women are less desirable employees because they are liable to become pregnant,” Sheehan v. Donlen Corp., 173 F.3d 1039, 1045 (7th Cir.1999), and to ensure that the decision whether to work while pregnant “was reserved for each individual woman to make for herself.” International Union, United Auto. Workers v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991). Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k). The law requires that women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work. Id.
Highlights of the New EEOC Guidance
When Does the Protection Apply?
Women need not be pregnant for the PDA to apply. The scope of protection is broad and covers not only pregnant women, but discrimination against employees who express their intent to become pregnant. The PDA also prohibits discrimination based on an employee’s fertility or childbearing capacity.
Fathers Are Protected
To the extent that parental leave is a benefit offered by an employer, it must be offered on the same terms to both men and women. For example, an employer who gave new mothers eight weeks of leave for the purpose of bonding with their newborns would also have to give fathers eight weeks of leave to bond with their newborn. On the other hand, if the purpose of the leave was for medical purposes, rather than for bonding, the employer need not provide a new father with medical leave.
The Americans with Disabilities Act & the Pregnancy Discrimination Act
The EEOC guidance also clarifies the relationship between the Americans with Disabilities Act (“ADA”) and the PDA. The EEOC’s enforcement practices show the ease in classifying pregnancy-related impairments as a “disability” under the ADA, which then triggers the need for a reasonable accommodation. For example, pelvic inflammation, which often makes it difficult to stand is a condition that might result from pregnancy but which can also be characterized as a disability. An employee who, as part of her duties, is required to stand for long period of time could request that her employer purchase new equipment, like a stool or chair, to reasonably accommodate her disability.
Lactation and Breastfeeding
Lactation and breastfeeding are considered pregnancy-related medical conditions under the new guidelines. If an employer allows its employees to address non-incapacitating medical conditions in a certain manner, then it must allow employees with lactation-related needs to address the condition to the same extent as she and her coworkers are able to address other similarly limiting medical conditions.
The guidance also states that hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act. Essentially, employers must provide reasonable break time and a private place for breastfeeding employees to express milk.
If an employee is able to perform her job, then an employer cannot force an employee to take leave for pregnancy-related medical conditions. This is true even if the employer believes it is in the employee’s best interest. This position equally applies to the situation where, as the result of a pregnancy-related condition, the employee has been absent from work, recovers, and then wants to return: the employer cannot force the employee to remain on leave until the baby is born. If an employee does take pregnancy-related leave, an employer cannot require the employee to first exhaust their medical leave before using accrued vacation leave—if the employer does not impose the same requirements on employees who seek leave for other medical conditions.
An employee should be able to work in an environment that is free of harassment based on pregnancy, childbirth, or pregnancy-related medical conditions. The type of conduct that may result in employer liability includes, but is not limited to, unwelcome and offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance motivated by pregnancy, childbirth, or related medical conditions such as breastfeeding.
The new guidance sets out relevant factors to evaluate whether instances of harassment violate the PDA: the frequency of the discriminatory conduct;the severity of the conduct;whether the conduct was physically threatening or humiliating;whether the conduct unreasonably interfered with the employee’s work performance; andthe context in which the conduct occurred.
It is important to remember that the EEOC’s guidance does not carry the force of law. Like the name suggests, “the EEOC policies are merely guidance. Ultimately, it is the responsibility of the courts to interpret the PDA and its relationship with other statutes. Along these lines, during the 2014–2015 United States Supreme Court term, the Court will decide whether an employer must provide the same work accommodations to an employee with pregnancy-related work limitations as it provides to employees with similar, but non-pregnancy related, work limitations.” Young v. United Parcel Service,707 F.3d 437 (4th Cir. 2013), cert. granted, (U.S. July 1, 2014) (No. 12–1226).