The U.S. Equal Employment Opportunity Commission’s recent guidance regarding pregnancy discrimination in the workplace heralds that agency’s renewed focus on that topic. After three decades of silence on the issue of pregnancy discrimination, the EEOC recently issued new federal guidelines on the subject titled “Enforcement Guidance on Pregnancy Discrimination and Related Issues.” The updated Guidance is accompanied by a set of prepared questions and answers about the Guidance and a Fact Sheet for Small Businesses. In addition to addressing the Pregnancy Discrimination Act (PDA), the Guidance also discusses the application of the Americans with Disabilities Act (ADA), as amended in 2008, to pregnant individuals.
The Guidance confirms the EEOC’s focus on pregnancy discrimination; a focus specifically identified as a national enforcement priority in the EEOC’s 2012-2016 Strategic Enforcement Plan. As part of that plan, the EEOC devoted the majority of its 2013 Title VII docket to suits alleging sex and pregnancy discrimination. We expect claims of pregnancy to continue to be a major basis for EEOC enforcement lawsuits in the foreseeable future.
In general, the Guidance reiterates the fundamental PDA policies: 1) an employer may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions; and 2) 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 employees with pregnancy-related impairments.
The Guidance establishes that the PDA covers not only current pregnancy, but discrimination based on a past pregnancy and a woman's potential to become pregnant.
Claims of intentional discrimination require that the decision maker(s) be aware of the pregnancy. The pregnant employee need not be the source of the knowledge. Office gossip or an individual’s appearance may be sufficient to demonstrate that the decisionmaker had knowledge of the individual’s current pregnancy. While an adverse action soon after the birth of a child may establish past-pregnancy based discrimination, the Guidance states an employee can also claim an adverse decision was motivated by the employee's current child care responsibilities long after the birth of the child.
Decisions based on stereotypes, such as refusing to hire a currently pregnant woman based on the assumption that she will leave after the child is born or not be committed to the job, are prohibited, as are decisions based on a woman’s capacity to become pregnant in the future. Consequently, the EEOC deems questions to prospective or current employees about their intent to become pregnant as evidence of discrimination. Similarly, decisions based on unsupported assumptions about when (or for how long) a prospective employee will take maternity leave are prohibited. Furthermore, an employer’s concerns over the health risk posed to a pregnant employee or her fetus will rarely, if ever, justify gender-specific job restrictions for a woman who is pregnant, or who is capable of childbearing.
The Guidance establishes that lactation is a covered pregnancy-related medical condition.
Employers may not discriminate against a lactating or breastfeeding employee, and must accommodate her scheduling needs for the purposes of expressing milk to the same extent the employer accommodates requests for flexibility in scheduling for other “similarly limiting” non-incapacitating medical conditions.
The Guidance establishes the circumstances under which employers may have to provide light duty for pregnant workers.
Evidence demonstrating that pregnant employees are treated less favorably than other employees with a similar ability (or inability) will establish a PDA violation even if the employer did not have an expressed animus against pregnant employees. Denying light duty to a pregnant worker while making it available to someone who was injured on the job or someone with a qualifying disability under the ADA is prima facie evidence of discrimination. For example, an employer provides light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. If the employer denies the light duty request, then the employer has violated the PDA because the policy treats pregnant employees differently than other employees who are similar in their ability or inability to work.
The Guidance establishes that leave policies may not make gender-based distinctions.
Employers who allow parental leave must provide it to men and women equally. An EEOC Q&A states: “If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose.” An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII, even if the employer believes it is acting in the employee's best interest.
The Guidance establishes that an employer may need to make reasonable accommodations for a pregnant employee.
For example, conditions such as preeclampsia or gestational diabetes may constitute pregnancy-related disabilities under the ADA, which entitle the employee to a reasonable accommodation. Examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments include: redistributing non-essential functions that the employee is unable to perform due to the disability; altering how an essential job function is performed (e.g., modifying standing, climbing, lifting or bending requirements); modifying policies (e.g., excepting an employee with a pregnancy-related kidney condition from a policy prohibiting having liquid at the workstation); acquiring or modifying equipment (e.g., a chair of a certain height); modified work schedules; or leave and light duty.
The Guidance establishes that employers’ insurance policies must offer appropriate coverage for pregnancy and its related medical conditions.
Although the exclusion of infertility coverage for all employees regardless of sex is neutral and does not violate Title VII, exclusions of treatments that pertain only to one sex might violate Title VII. Additionally, employers may not discriminate against an employee because she uses contraceptives.
Employer health insurance plans must also cover prescription contraceptives on the same basis as prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. A health insurance plan that excludes prescription contraceptives, but otherwise provides comprehensive coverage, will be considered discriminatory.
With respect to insurance, taking an adverse action, such as terminating an employee to avoid insurance costs arising from the pregnancy-related impairment of the employee or the impairment of the employee's child, could violate the ADA (if the employee's or child's impairment constitutes a "disability"), the Genetic Information Nondiscrimination Act (GINA) or the Employee Retirement Income Security Act (ERISA). Discrimination against an employee based on her abortion-related decision is prohibited by Title VII. Although an employer’s health insurance plan is not generally required to cover abortion, coverage is necessary where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion.
The EEOC provides a long list of best practices for compliance, including the following:
Review employment policies relating to anti-discrimination, benefits, leave of absence, light duty and accommodation policies and make any necessary changes to ensure they are compliant with the law in light of the updated guidelines.
Focus on qualifications in employment decisions rather than planned pregnancy, pregnancy, recent pregnancy or caregiver status.
Train managers and human resources professionals on rights and responsibilities under the PDA; the ADA and other statutes regarding pregnancy, and specifically on the duty to accommodate restrictions related to pregnancy, childbirth or lactation.
Take pregnancy discrimination complaints very seriously and protect employees who complain about discrimination from retaliation;
Make sure the business reasons for employment actions are well documented; and
Disclose information about fetal hazards to applicants and employees and accommodate any requests for reassignments to the extent feasible.
In addition to the EEOC’s renewed focus on the topic of pregnancy discrimination, West Virginia employers should also be aware of the recently enacted Pregnancy Workers Fairness Act (PWFA), which prohibits pregnancy discrimination and harassment against employees affected by pregnancy, childbirth and related medical conditions. Like the EEOC’s Guidance, the PWFA requires employers to provide pregnant workers with reasonable accommodations. Under the PFWA, an employer engages in pregnancy discrimination if it fails to provide reasonable accommodations to the known limitations of a prospective or a current employee's pregnancy, childbirth or related medical conditions despite receiving written documentation from the individual's health care provider, unless the employer can show that the requested accommodation would impose an undue hardship on its business operations. Two provisions make the PWFA unusual. First, an employer cannot require a pregnant employee to take leave under a leave law or the employer’s leave policy if another reasonable accommodation can be provided. Second, and maybe even more important, an employer cannot require a job applicant or employee affected by pregnancy, childbirth or related medical conditions to accept an accommodation other than the accommodation the applicant or employee has requested. This is very different from the standard analysis under disability laws that provide employers only need to provide a reasonable accommodation, not the employee’s preferred accommodation. Not surprisingly, the PWFA prohibits employers from retaliating against an individual who opposes an unlawful practice or participates in an investigation, proceeding or hearing under the PWFA.