EEOC Issues Enforcement Guidance on Pregnancy Discrimination and Related Issues

August 07, 2014

By notice issued July 14, 2014, the US Equal Opportunity Commission (“EEOC”) issued enforcement guidance on pregnancy discrimination and related issues.[1]  The Pregnancy Discrimination Act (“PDA”), enacted in 1978, provides that discrimination in any of the terms of employment based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).  The Americans with Disabilities Act Amendments Act of 2008 broadened the definition of the term “disability” as used in the Americans With Disabilities Act (“ADA”) to include pregnancy-related impairments and require employers to provide reasonable accommodation for such impairments.

The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth.  As in the past, the key to avoiding charges of discrimination under the PDA is treating individuals affected by pregnancy, childbirth or related medical conditions the same for all employment-related purposes as other persons not so affected but who are similar in their ability or inability to work.  For example, if an employer has a policy applicable to employees who are sick or injured, the employer should apply that same policy to employees with pregnancy, childbirth or related medical conditions.  If an employer creates a light-duty position for employees with on the job (i.e., workers compensation) injuries, the employer should also make such light-duty positions available for persons with pregnancy, childbirth or related medical conditions.  Although the guidelines state that adverse personnel action based on a worker’s post-pregnancy care giving responsibilities would fall outside the parameters of the PDA, such conduct might be actionable as sex discrimination under Title VII if applied to females and not to males.

Title I of the ADA prohibits discrimination in employment on the basis of disability, which includes an existing physical and mental impairment affecting a major life function, a history of such impairment, or the employer’s perception that the employee has such an impairment.  The ADA requires that covered employers (i.e., employers of 15 or more employees) provide reasonable accommodation to allow disabled employees to perform the essential functions of their job, unless doing so would cause a direct threat or an undue hardship (i.e., significant difficulty or expense for the employer).  The EEOC guidance makes it clear that conditions arising out of pregnancy, childbirth and related issues may qualify as disabilities and trigger the employer’s duty to provide reasonable accommodation, despite the fact that such disability is temporary.  To avoid violation of the PDA and the ADA, employers must engage in an interactive discussion with affected employees concerning what, if any, accommodations can be made to allow the employee to continue to perform the essential functions of her job.  What constitutes “Reasonable accommodation” varies from case to case, depending totally on the specific circumstances in question, including the job in question, the employer’s work force, specific need for and demands of the work, and other surrounding factors.  Although pregnancy itself is not an impairment within the meaning of the ADA, and therefore, is not a disability as such, pregnant workers may have impairments related to their pregnancies that do qualify as disabilities under the ADA and therefore reasonable accommodation.

The guidance also points out that §4207 of the Patient Protection and Affordable Care Act requires that employers with 50 or more employees provide “reasonable break time” for breast-feeding employees to express breast milk until the child’s first birthday, unless doing so would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature or structure of the employer’s business.  Under §4207, affected employers must provide a private place, other than a bathroom, for breast feeding.  Such employers do not need to pay an employee for any work time spent for this purpose.

Finally, the guidance contains suggested “best practices” employers can (but are not required to) adopt to proactively prevent violation of the PDA and ADA.