Many of you may be surprised to learn that there’s been a law in effect since 1978 which prohibits workplace discrimination against pregnant employees. That’s a long time ago, and since the passage of the Pregnancy Discrimination Act (PDA) back in that day, much has changed in the legal landscape affecting employee’s rights, including passage of the Americans with Disabilities Act (ADA).
So this past year the Equal Employment Opportunity Commission (EEOC) decided to issue a new Enforcement Guidance dated July 14, 2014 on Pregnancy Discrimination and Related Issues which comprehensively updates a wide variety of issues with respect to pregnant employees and in some instances expands rights never before granted.
Reasonable Accommodation. Although pregnancy itself is not a disability under the ADA, the Guidance states that to the extent a worker’s normal, healthy pregnancy limits her ability to perform certain job duties, and to the extent an employer would accommodate an employee with similar limitations, the employer also must accommodate the pregnant worker. The EEOC also suggests that a range of temporary impairments associated with pregnancy may qualify as disabilities under the ADA, at least where employees can show that pregnancy-related conditions substantially limit their ability to perform one or more major life activities. However, even for pregnancy-related impairments that do not rise to the level of disabilities, the EEOC is now essentially imposing an accommodation duty on employers which may involve accommodations such as providing modified tasks, alternative assignments, or special leave.
Light Duty. The Guidance also extends the availability of light duty positions to many pregnant women. Most companies generally limit the availability of light duty to employees injured on the job. The EEOC, however, contends an employer may not refuse a pregnant worker’s request for light duty on the basis of a policy that makes distinctions based on the source of an employee’s limitations. The Guidance declares that an employer cannot treat a pregnant employee less favorably than employees who are injured on the job in assessing the right to light duty. Many employers may want to give consideration to reviewing their light duty policies in view of this position of the EEOC. (Note, however, that this area of the Guidance may be subject to judicial review as the Supreme Court has agreed to hear a related case in the near future.)
Breastfeeding. The Guidance states that lactation is a pregnancy-related medical condition under the PDA, and a breastfeeding employee “must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.” An employer that allows employees to change their schedules or use sick leave to attend routine doctor appointments and to address non-incapacitating medical conditions therefore must allow employees to do the same for lactation-related needs under similar circumstances. Also non-exempt employees must be provided with reasonable breaks and a private place to express milk.
Best Practices. The Guidance provides a list of “Best Practices” which currently exceed the dictates of federal non-discrimination requirements but are designed to represent the optimal way of handling issues regarding pregnancy discrimination to best keep employers out of legal and operational difficulties.
Recommended Best Practices include implementing a strong policy against pregnancy discrimination, training managers in that policy, responding to complaints promptly and effectively, evaluating any restrictive leave policies for any disproportionate impact on pregnant workers, stating explicitly that reasonable accommodation procedures are available to employees with pregnancy-related impairments, and more.
The EEOC also declares that certain employer inquiries related to pregnancy or potential pregnancy may be indicative of discrimination.
There is much more to the Guidance beyond this summary. Pregnancy discrimination is a growing and changing area of human resources law. Please call us if we can help you deal with any issues that may arise regarding those of your employees now or soon to be looking forward to the special event of childbirth.