On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) published a new Enforcement Guidance on Pregnancy Discrimination and its relation to the Americans with Disabilities Act (ADA). In the Guidance, the EEOC not only extends pregnancy discrimination protections to past and intended pregnancies but it also provides that pregnancy-related impairments may qualify as a disability under the ADA Amendments Act of 2008 (ADAAA), even though they are only temporary. Here are the highlights of the EEOC's Pregnancy Discrimination Guidance.
Pregnancy Discrimination Not Limited to Current Pregnancies
The EEOC states that the fundamental principles behind the Pregnancy Discrimination Act (PDA), enacted in 1978, are to prohibit employers from discriminating against an employee on the basis of pregnancy, childbirth or related medical conditions and to ensure that women affected by pregnancy, childbirth or related medical conditions are treated the same as similarly situated persons not so affected. The EEOC goes on to state that the PDA does not restrict these protections to current pregnancies alone. Accordingly, the EEOC provides examples of how a past pregnancy or a future pregnancy may form the basis of a discrimination claim where an employer takes adverse employment action against a women on such grounds. The Guidance also includes examples related to unlawful discrimination based on:
Intention to become pregnant;
Infertility treatments; and
Use of contraception.
Notably, in its Guidance, the EEOC states "[e]mployers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives . . ." – a position seemingly at odds with the U.S. Supreme Court's recent decision in the Hobby Lobby case which held that closely held for-profit companies are not required to provide contraceptive methods that violate the company-owners' sincerely held religious beliefs. Hobby Lobby did not, however, allege a violation of Title VII so the EEOC's position may be challenged in future cases.
Medical Conditions Related to Pregnancy or Childbirth
The EEOC clarifies that a woman with a medical condition related to her pregnancy or giving birth must be treated the same as other employees who are similar in their ability or inability to work but are not affected by pregnancy or childbirth-related medical conditions. The agency points to circumstances in which discriminating against a female employee who is lactating or breastfeeding could violate Title VII. It also addresses abortions, stating that Title VII protects women against discrimination for having or contemplating an abortion but that employer-provided health insurance need not pay for coverage of an abortion except where the life of the mother would be endangered or medical complications arose due to the abortion.
Light Duty for Pregnancy-Related Conditions
According to the EEOC's Guidance, an employer is required to treat an employee temporarily unable to perform the functions of her job because of pregnancy-related conditions the same as it treats other non-pregnant employees who are similarly able or unable to work. This includes providing a light duty position to a pregnant worker on the same terms that light duty is offered to other employees with similar work restrictions or inability to perform certain tasks.
Pregnancy-Related Impairments May Be A Disability
The EEOC states that although pregnancy itself is not an impairment under the ADA and therefore, is not its own disability, some pregnant workers may have pregnancy-related impairments that fall within the eased disability definition under the ADAAA. For example, some pregnancy-related conditions involve major bodily functions, such as anemia, gestational diabetes or nausea that causes severe dehydration. To the extent that such impairments substantially limit a major life activity, they may qualify as a disability under the ADA, even though they may be temporary.
Because pregnancy-related impairments may be ADA disabilities, employers have an obligation to provide a reasonable accommodation as long as it does not impose an undue hardship on the business. Examples of reasonable accommodations for pregnancy-related impairments include:
Redistributing marginal functions, such as the occasional lifting of heavy objects;
Modifying how a job function is performed, such as allowing the pregnant employee to sit on a chair rather than standing;
Modifying workplace policies, such as allowing food at the employee's work station or allowing more frequent breaks;
Allowing telecommuting for a pregnant employee on bed rest, if feasible;
Purchasing or modifying equipment or devices;
Changing work schedules, such as starting later to accommodate morning doctor appointments;
Granting leave, in addition to any time off that the employer would normally provide under a sick leave policy; and
Light duty, such as moving a retail stocker to a cashier position temporarily.
The EEOC offers best practice suggestions to help employers comply with the requirements of the PDA and the ADA. Some, the EEOC admits, go beyond what is federally mandated but the EEOC contends that such proactive measures decrease complaints of pregnancy-related discrimination and enhance employee productivity. Many of its best practices are those that all employers should adopt to limit discrimination on any basis, such as developing and enforcing strong anti-discrimination policies, training managers on the law and how to handle complaints, responding to complaints of pregnancy discrimination promptly and thoroughly and avoiding retaliation against employees who assert their rights under the PDA and ADA.
In conjunction with its Enforcement Guidance on Pregnancy Discrimination and Related Issues, the EEOC also published a Questions and Answers document as well as a Fact Sheet for Small Businesses related to pregnancy discrimination. If you have any questions about what the Guidance means for your workplace, please feel free to reach out to me or the Holland & Hart employment attorney with whom you work.