As the number of pregnancy discrimination lawsuits has increased, the Equal Employment Opportunity Commission (“EEOC”), for the first time in over thirty years, issued a comprehensive guidance update on pregnancy discrimination last month. The EEOC’s guidance serves to clarify its position on a wide range of topics related to pregnancy discrimination as enforced under the Pregnancy Discrimination Act (“PDA”) and Americans with Disabilities Act (“ADA”).
The scope of the EEOC casts a wide net across the spectrum of potential pregnancy discrimination topics. However, one of the notable changes in the guidance relates to which individuals are covered by the PDA. In addition to covering an employee’s current pregnancy, the protections of the PDA now also apply to an employee’s past pregnancies and their “potential or intention to become pregnant” in the future. Employees who may qualify as having “potential or intention” to become pregnant fall into a number of categories:
- Including penalizing a female employee for missing work to undergo fertility treatments;
- Excluding a female employee from a position because it may harm her fertility while not excluding fertile males and
- Ensuring that an employer’s health insurance plan provides coverage for contraception on the same basis as prescription drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy.
An employee could also qualify if they are discriminated against due to their use of contraceptives. As a result, there are a wide range of potential employees who may now find themselves protected under the PDA.
The new guidance expands the types of medical conditions that are related to pregnancy and childbirth. Specifically, the EEOC now states that lactation and breastfeeding are pregnancy‑related conditions protected under the PDA. Therefore, employees with lactation related needs must be given the same freedom and opportunity to address those needs as other employees with similarly‑limiting medical conditions. Thus, if an employer allows employees to change their schedule or use sick leave for routine doctor’s appointments related to a non-incapacitating medical condition, then female employees must be allowed the same opportunities in order to attend to lactation‑related needs.
Similarly, the EEOC guidance reaffirmed its continued protection for medical impairments related to a person’s pregnancy. The guidance specifically states that pregnancy‑related impairments that may qualify a pregnant individual as disabled under the ADA include carpal tunnel syndrome, sciatica, mandatory bed rest, depression, nausea, painful swelling and conditions that limit walking. These protections naturally extend to reasonable accommodations as well, which can include modifying workplace policies (i.e., more frequent water breaks), altering non-essential job functions (i.e., lifting restrictions), purchasing or modifying workplace equipment (i.e., a stool so that a pregnant woman can sit at her workstation) and granting additional leave or work flexibility. The EEOC also reiterated that employers cannot require an employee to take leave because she is or has been pregnant, as long as the employee is capable of fully performing the job. Likewise, pregnant employees who may be limited in their ability to perform their job must have the same leave options available to them as non-pregnant employees who are similarly limited. This means that an employer cannot require that a pregnant employee exhaust her sick leave before using other forms of leave or impose a shorter maximum period for leave unless those provisions are applied to all employees with similarly‑limiting disabilities.
The guidance puts a specific emphasis on light duty requirements for employers. If an employer provides light duty assignments to employees who are temporarily unable to perform their full duties, then the same accommodations must be equally provided to pregnant employees who are temporarily unable to perform their full duties. That said, employers are not required to provide special treatment to pregnant employees. Therefore, if there are certain restrictions on light duty positions, such as the number or duration of such positions, the employer is permitted to apply those restrictions to pregnant employees, as long as they are equally applied to non-pregnant employees as well.
Fathers Are Included
Finally, the EEOC also extends additional protections to new fathers. Fathers must receive equal treatment as it relates to parental leave, i.e. leave for the purposes of bonding with or providing care for a newborn child. Thus, if an employer provides leave to new mothers in addition to recuperation from childbirth or provides paid maternity leave, then fathers of newborns must be provided with the same leave options and benefits. However, employers can distinguish and provide leave related to physical limitations imposed by pregnancy or childbirth that is other than the leave provided for bonding and/or caring for the baby.
The EEOC’s Guidance is not law or regulation. The courts will ultimately decide what is required by the PDA. In fact, the Supreme Court will be reviewing accommodations that must be provided to pregnant employees during its 2014-2015 term in Young v. United Parcel Services, Inc. However, employers may still want to review and update their policies to ensure that they sufficiently address all of the new positions identified by the EEOC.