EEOC Gives Birth to New Guidance on Pregnancy Discrimination

On July 14, 2014, the US Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on “Pregnancy Discrimination and Related Issues.” The Enforcement Guidance updates the EEOC’s previous guidance on the subject of pregnancy discrimination, which has been a hot topic for many jurisdictions as discussed here and here. This alert will answer some questions concerning the new Enforcement Guidance.

Broadly, the Enforcement Guidance includes discussions of:
 

• When an employer’s actions may constitute unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA);
• The obligation of employers under the PDA to provide pregnant workers with equal access to the benefits of employment — such as leave, light duty, and health benefits;
• How Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA (and was amended in 2008 to broaden the definition of disability), applies to individuals with pregnancy-related impairments;
• 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 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.
   

Below is a sampling of some important questions that the EEOC’s Guidance answers:

Question 1: Who is covered by the PDA and ADA?

Both the PDA and the ADA apply to private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs. The PDA applies to employers in the federal sector, as does Section 501 of the Rehabilitation Act of 1973, which incorporates the ADA’s employment nondiscrimination standards. Beyond these federal laws, state and local laws in some jurisdictions provide additional protections.

Question 2: What does the PDA prohibit?

The PDA generally prohibits an employer from firing, refusing to hire, demoting, or taking any other adverse employment action against a female employee if pregnancy, childbirth, or a related medical condition was a motivating factor for such adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).

Question 3: May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?

Although Title VII does not expressly prohibit employers from asking applicants or employees about pregnancy, the EEOC has made it clear that such questions are generally discouraged. The EEOC has stated that it will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Again, it is unlawful to make adverse decisions relating to hiring, assignments, or promotion based upon an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs. Thus, it is recommended that an employer avoid such questions altogether, as their answers may not legally inform a decision about an applicant or employee.

Question 4: Is an employee or applicant protected from discrimination once she returns from maternity leave?

Yes. An employee or applicant may not be subjected to discrimination because of a past pregnancy, childbirth, or related medical condition. Close proximity between the employee’s return to work and the employer’s decision to take adverse employment action against her, coupled with an explanation for the adverse action that is not credible (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would almost certainly constitute evidence of potential pregnancy discrimination. While the EEOC has not established a bright line rule for what constitutes “close proximity,” at least one court has stated that a period of two months between an employee’s pregnancy and the adverse employment action makes out a prima facie showing of “close proximity.” See Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. 2006).

Question 5: If a pregnant employee needs light duty (temporary work that is less physically demanding than her normal duties), is the employer required under the PDA to provide it?

Even though the EEOC stated in the Enforcement Guidance that the answer to this question is yes, the lower courts are divided on the answer to this question. Most courts hold that an employer must provide such an accommodation if it provides light duty for employees who are not pregnant but who “are similar in their ability or inability to work.” Under this view, an employer may not treat pregnant workers differently from any other comparable employee for whom it would provide light-duty accommodations. Thus, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries or ADA-qualifying disabilities. But the US Supreme Court is scheduled to hear an appeal in its upcoming term from a Fourth Circuit decision reaching the contrary conclusion — that the PDA does not require such an accommodation. See Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), cert. granted, No. 12-1226, 2014 WL 2931839 (U.S. July 1, 2014).

Question 6: May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?

No. An employer may not force an employee to take leave because she is or has been pregnant, so long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interest. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby’s birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.

Question 7: What is a pregnancy-related impairment?

The PDA covers “pregnancy-related impairments.” The Enforcement Guidelines reaffirmed the EEOC’s position that “[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities ... even though they are only temporary.” The Enforcement Guidelines listed examples of pregnancy-related impairments that could potentially constitute disabilities, including, but not limited to, disorders of the uterus and cervix which may require bed rest during pregnancy; gestational diabetes; and nausea causing severe dehydration.

Question 8: According to the EEOC, what are some of the best practices to employ in order to avoid a Pregnancy Discrimination claim?

• Train managers and employees regularly about their rights and responsibilities related to pregnancy, childbirth, and related medical conditions.
• Respond to pregnancy discrimination complaints efficiently and effectively. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary to resolve the situation and prevent problems from arising in the future.
• Focus on the applicant’s or employee’s qualifications for the job in question. Do not ask questions about the applicant’s or employee’s pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
• Make sure employment decisions are well documented and, to the extent feasible, are explained to affected persons. Make sure managers maintain records for at least the statutorily required periods.
• If there is a restrictive leave policy (such as restricted leave during a probationary period), evaluate whether it disproportionately impacts pregnant workers and, if so, whether it is necessary for business operations. Ensure that the policy notes that an employee may qualify for leave as a reasonable accommodation.
• Ensure that employees of both sexes are given equal opportunity to participate in complex or high-profile work assignments that will enhance their skills and experience and help them ascend to upper-level positions.

Conclusion

The above questions and answers merely scratch the surface on everything an employer needs to know about pregnancy discrimination. Employers should familiarize themselves with the PDA and the EEOC’s Enforcement Guidance in order to avoid potential charges of pregnancy discrimination. If you have any questions about the PDA or the Enforcement Guidance, please contact the authors of this post, or any member of Arent Fox’s Labor & Employment Group.