The EEOC’s Guidelines on Pregnancy Discrimination

 

Pregnancy DIscrimination

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.

Med­ical Leave

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.

Work­place Harassment

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.

 Part­ing Thoughts

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).