For the first time in 30 years, the Equal Employment Opportunity Commission (EEOC) has updated its enforcement guidance on pregnancy discrimination and related issues. The enforcement guidance notice, dated July 14, 2014, was released along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. This updated guidance supersedes the EEOC’s 1983 Compliance Manual chapter discussing pregnancy discrimination.
As stated in the EEOC’s press release, the guidance discusses:
- The fact that the Pregnancy Discrimination Act (PDA) covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
- Lactation as a covered pregnancy-related medical condition;
- The circumstances under which employers may have to provide light duty for pregnant workers;
- Issues related to leave for pregnancy and for medical conditions related to pregnancy;
- The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
- When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
The guidance highlights that while pregnancy itself is not a disability, pregnant workers and job applicants are not excluded from the Americans with Disabilities Act (ADA), and changes to the definition of the term “disability” resulting from enactment of the ADA Amendments Act of 2008 (ADAAA) make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled a reasonable accommodation under the ADA.
According to the EEOC, charges alleging pregnancy discrimination have substantially increased in recent years and commonly include allegations of discharge based on pregnancy, disparate terms and conditions of employment based on pregnancy (such as closer scrutiny and harsher discipline than that administered to non-pregnant employees), suspensions pending receipt of medical releases, medical examinations that are not job-related or consistent with business necessity, and forced leave.
Employers should audit their existing practices and leave policies to ensure compliance with the PDA and the ADA as it relates to workers who are currently pregnant, planning to become pregnant, as well as workers who have been pregnant in the past.
The press release and guidance documents can be found here.