For the first time in more than 30 years, the Equal Employment Opportunity Commission has issued Enforcement Guidance (“guidelines”) to clarify the legal protections to be afforded workers affected by pregnancy and pregnancy-related medical conditions. The EEOC determined the guidelines to be necessary in light of EEOC data reflecting a 46 percent increase in pregnancy discrimination complaints from 1997 to 2011. While the Enforcement Guidance is not binding law that courts must apply, it can nevertheless be relied upon as persuasive authority for interpreting federal law concerning pregnancy discrimination. The EEOC has also published helpful Questions and Answers concerning the guidelines, which include many examples of conduct the EEOC interprets as lawful or unlawful.
The guidelines explain that the Pregnancy Discrimination Act of 1978 (“PDA”) prohibits pregnancy discrimination (a form of sex discrimination) against not only pregnant employees but also those post-pregnant or intending to become pregnant. Thus, an employer must treat employees and applicants affected by pregnancy or pregnancy-related medical conditions in the same manner the employer treats employees and applicants unaffected by pregnancy.
Significantly, the new guidelines further state that pregnancy-related medical conditions can be considered disabilities covered by the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination against employees who have or had qualifying disabilities, or who are perceived as having a qualifying disability. The ADA further entitles workers with qualifying disabilities to reasonable accommodations at work. While the guidelines state that pregnancy itself is not a disability, they provide that pregnancy-related impairments and conditions can qualify as ADA-protected disabilities if they substantially limit one or more major life activities or did so in the past. The ADA also protects workers who are regarded as having a disability related to pregnancy. Thus, employers can face ADA liability for discriminating against employees based on pregnancy-related conditions or perceived impairments, and for failing to offer reasonable accommodations related to pregnancy. Which accommodations are “reasonable” is a fact-dependent inquiry that must be determined in light of an employer’s policies, legitimate business needs and practice of offering accommodations to similarly situated employees with medical conditions. However, reasonable accommodations related to pregnancy might include temporary “light duty” work, sufficient bathroom breaks, and adequate privacy and opportunities for needs related to lactation, which is considered a pregnancy-related medical condition.
Additionally, the guidelines provide that if an employer offers parental leave (not to be confused with medical leave associated with childbearing or recovery from childbirth), the leave must be provided to male and female employees on the same terms.
It is important to note that the EEOC’s guidelines do not afford preferential treatment for workers affected by pregnancy. Instead, the guidelines underscore the federal law requirement that employers must treat employees affected by pregnancy in the same manner it treats those who are unaffected by pregnancy but who are similar in their ability or inability to perform the essential functions of their jobs.