New Guidance from EEOC on Pregnancy Discrimination

Earlier this week, the EEOC issued a Notice titled Enforcement Guidance: Pregnancy Discrimination and Related Issues. The EEOC provides an overview of statutory protections, discussing the Pregnancy Discrimination Act (“PDA”), the Americans with Disabilities Act (“ADA”), and other requirements affecting pregnant workers, including the Family Medical Leave Act (“FMLA”), Executive Order 13152 Prohibiting Discrimination Based on Status as Parent, Section 4207 of the Patient Protection and Affordable Care Act which requires that employers provide reasonable break time for nursing mothers, and state laws that relate to pregnant workers. The EEOC provides a number of helpful examples of what would and would not constitute unlawful discrimination and is a useful tool for employers to review.

This guidance can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

According to the EEOC, pregnancy discrimination claims continue to rise. Between 1996 and 2005, pregnancy related discrimination claims increased 25% and those types of claims filed by women of color increased 76%. This trend continues.

As set forth by the EEOC, Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. The EEOC provides a thorough summary and analysis of the types of discrimination under the PDA. A few of the highlights are as follows:

• Knowledge of pregnancy is an important issue–if those responsible for taking an adverse employment action do not know the employee is pregnant, there can be no finding of intentional discrimination. However, knowledge can stem from the fact that the employee notified the decision makers, or because her condition was obvious or there was office gossip regarding it.
• Employers may not rely on stereotypes and assumptions regarding pregnant employees—for example, where a pregnant woman applies for a position at a campground where the busiest months are July and August and informs the employer that she is due in late September and plans to work up until she gives birth, the employer’s refusal to hire her because it decides it does not want to risk that she will have to stop working sooner would be unlawful discrimination.
• Employers cannot discriminate between women and men based on reproductive risk—an employer cannot exclude all fertile women if it does not exclude all fertile men.
• Title VII prohibits employers from discriminating against an employee because of her intention to become pregnant—thus, reassigning an executive after learning of her intention to become pregnant again would support a claim for unlawful discrimination.
• Title VII mandates that pregnant employees are afforded the same benefits for pregnancy-related medical conditions as provided for other medical conditions—as an example, the EEOC states that if an employer has a policy that no employees that have not worked for the employer for one year can take more than 4 weeks off, then disallowing a woman with a pregnancy-related medical condition to take more than 4 weeks off would not constitute discrimination under the PDA.
• Employers may not discriminate against nursing mothers—so, for example, a demotion of an employee based on her breastfeeding schedule would be improper.
• It is very difficult for employers to succeed on a bona fide occupational qualification (“BFOQ”)—an employee seeking to prove a BFOQ has to show that pregnancy actually interferes with an employee’s ability to perform the job. According to the EEOC, “[t]he defense cannot be based on fears of danger to the employee or her fetus, fears of potential tort liability, assumptions and stereotypes about the employment characteristics of pregnant women such as their turnover rate, or customer preference.”
• Pregnant employees must also be given equal access to benefits—like to light duty work.
• Parental leave must be provided to similarly situated men and women on the same terms—so a new mother may be permitted to have additional time specifically for recovery from pregnancy and childbirth, but new parents must be given the same amount of parental leave.

As the EEOC explains, the ADA is also called into play as many courts have found that pregnancy-related impairments may constitute disabilities under the ADA. The example given by the EEOC is an employee who is placed on bed rest by her physician after being diagnosed with preeclampsia. This employee has a disability under the ADA and any adverse action against her because of this impairment would be unlawful. Further, employers can run into trouble under the ADA for taking action against an employee who is regarded as having a disability based upon her pregnancy.

In light of these statutory protections, the EEOC offers guidance to employers as to best practices. Some of these best practices include developing and disseminating strong policies based on the requirements of the PDA and ADA, providing regular training on these issues, responding to complaints about pregnancy discrimination efficiently and effectively, making sure to protect employees from retaliation, making sure to focus on qualifications during the application process and avoid asking about pregnancy status or plans to start a family, avoid making decisions based on stereotypes or assumptions about pregnant women or new mothers, review leave policies and make sure that leave is provided to similarly situated men and women, including pregnant women, on same terms, and have a process in place to consider reasonable accommodation requests from women with pregnancy-related disabilities and make sure managers are aware that the term disability may include employees with pregnancy-related impairments.