EEOC’s Guidance on Pregnancy Discrimination

On July 14, the EEOC issued its first comprehensive guidance since 1983 on pregnancy discrimination and the interaction of the Pregnancy Discrimination Act (PDA) with the Americans with Disabilities Act (ADA). The 51-page Enforcement Guidance sets out the requirements in the PDA that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as non-pregnant employees in their ability or inability to work. This Enforcement Guidance also explains how the ADA definition of disability applies to workers with impairments related to pregnancy.

Although pregnancy itself is not a disability, pregnant workers and pregnant job applicants are not excluded from the protections of the ADA. The ADA Amendments Act of 2008 (ADA AA) makes it easier now for pregnant workers with pregnancy- related impairments to demonstrate that they have a disability for which they may be entitled to a reasonable accommodation. Among the many issues covered in this comprehensive Enforcement Guidance are the following:

An employer is prohibited from discriminating against an employee because that employee has stated that she intends to become pregnant.

An employer is required to provide the same benefits, such as leave and light duty assignments, for pregnancy-related medical conditions as it provides for other medical conditions.

Lactation is a pregnancy-related medical condition and less favorable treatment of a lactating employee could raise an inference of unlawful discrimination. A lactating employee must have the same freedom to address her lactation-related needs that her coworkers would have to address other similarly limiting medical conditions.

The ADA AA expanded definition of “disability” to include employees with conditions requiring temporary work related restrictions, also applies to work-related restrictions needed by pregnant women.

Pregnancy-based harassment, including unwelcome and offensive jokes or name calling, intimidation, offensive objects or pictures, is prohibited by the PDA. Similar to other types of harassment cases, the frequency and severity of the harassment, as well as whether the harassment unreasonably interfered with the employee’s ability to perform her job, must be analyzed.

Disparate treatment of employees with caregiving responsibilities is prohibited when the employer treats a male caregiver different than a female caregiver or, for example, treats a Latina working mother differently based on stereotypes about working mothers and Latinos. Additionally, an employer violates the ADA if it treats an employee less favorably based on stereotypical assumptions about the employee’s ability to perform job duties satisfactorily because the employee also cares for a child with a disability.

An employer may not require an employee to take leave during pregnancy nor may an employer exclude pregnant or fertile women from a job. While an employer may not force pregnant women to take leave, the employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others.

An employer must allow males as well as females to use parental leave on equal terms.

If an employer takes a prohibited action against a pregnant employee such as reassignment, it can be found liable for having regarded the employee as having a disability based on its belief that the employee had an impairment that was not both transitory and minor.

A pregnant employee may be entitled to a reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability.

The complete EEOC Enforcement Guidance on Pregnancy Discrimination is at http://www.EEOC.gov/laws/guidance/pregnancy_guidance.cfm and Questions and Answers at http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.