What Employers Should Know About the EEOC's New Enforcement Guidance Regarding the Pregnancy Discrimination ActBy Racquel Crespi Weintraub and Jeffrey A. Kimmel
For the first time in over thirty years, the U.S. Equal Employment Opportunity Commission ("EEOC") issued guidance (the "Guidance") on pregnancy discrimination in the workplace. The Guidance explains the EEOC’s current position on the Pregnancy Discrimination Act ("PDA") and discusses the application of the Americans with Disabilities Act ("ADA") to pregnancy related disabilities. The EEOC has also supplemented the Guidance with a Fact Sheet for Employers and accompanying Questions and Answers.
While the Guidance does not have the force of law, the Guidelines highlight certain potential risks that employers should consider. This article is a summary of that Guidance. Links to these documents can be found below.
First, the Guidance makes clear that an employer cannot discriminate against a female employee based on her current pregnancy, past pregnancies, potential or intended pregnancy or medical conditions related to pregnancy and childbirth. Thus, for example, an employer may not discriminate against a female worker because she becomes or may become pregnant. Moreover, an employer may not discriminate against or terminate a female worker who takes time off for in vitro fertilization.
The Guidance also discusses that an employer should make reasonable accommodations for pregnant employees who have work restrictions. This would include providing light duty positions for pregnant employees who have a restriction, even if it does not constitute a disability under federal law. Additional examples are provided in the Guidance. Moreover, even though pregnancy itself is not considered a disability under the ADA, under the Guidance, many medical conditions related to pregnancy may be considered a disability. For example, gestational diabetes or preeclampsia, even though these conditions may be temporary, may qualify as disabilities under the ADA, and if so, employees with such conditions will be entitled to reasonable accommodations.
In addition, the Guidance addresses the EEOC’s position regarding parental leave policies. Specifically, where an employer permits employees to take parental leave (i.e. leave to care for and/or bond with a child), the employer must do so on the same terms to male employees and female employees.
In sum, in view of the Guidance, employers should consider the following pro-active measures:
- Apply policies consistently to employees;
- Provide pregnant employees with the same benefits or accommodations as non-pregnant employees;
- Create a robust policy based on the requirement of the PDA and the ADA, disseminate that policy to employees and enforce it;
- Train managers about their responsibilities related to pregnancy and respond to complaints in a timely manner.
It should be noted that many states and municipalities, including New York City, have passed laws providing for reasonable accommodations for an employee related to pregnancy, childbirth, or a related medical condition. It should also be noted that the issue of whether an employer must provide pregnant employees with work accommodations under the PDA will be addressed by the Supreme Court this fall.