On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued an updated “Enforcement Guidance on Pregnancy Discrimination and Related Issues” (Notice No. 915.003), along with a question and answer document about the guidance and a fact sheet for small businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on the EEOC’s web site.
This is the first comprehensive update of the EEOC’s guidance on the subject of pregnancy discrimination since 1983. The guidance addresses the requirements of the Pregnancy Discrimination Act (“PDA”) and the application of the Americans with Disabilities Act (“ADA”) to individuals who have pregnancy-related disabilities.
The fact that the guidance addresses both the PDA and the ADA is significant. The EEOC has made it clear that employer compliance with the recently amended ADA is a priority. To this point, EEOC Chair Jacqueline A. Berrien has commented that the guidance is intended to “aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.” The updated guidance is also a response to the increase in pregnancy discrimination complaints. The latest EEOC data shows a 46 percent increase in pregnancy-related complaints from 1997 to 2011.
The guidance is largely an update of longstanding EEOC policy regarding pregnancy and related conditions. It sets forth the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and 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 expanded definition of “disability” might apply to workers with impairments related to pregnancy.
Several of the key issues discussed in the guidance include:
- The fact that the 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 be required 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 different 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 be required to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
The guidance is the product of a February 2012 public meeting where the EEOC solicited stories about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities. The materials from that meeting, including testimony and transcripts, are available here.
The new guidance, like all EEOC guidelines, is not controlling law. It will ultimately be up to the Courts to interpret and enforce the PDA and ADA. However, the guidance serves as a good indication of how the EEOC will address the issue of pregnancy discrimination. Employers should review their policies regarding pregnancy, including any light-duty policies, to confirm compliance with both the PDA and the ADA.