On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued new guidelines regarding its enforcement of pregnancy discrimination laws. This is the first comprehensive overhaul of the EEOC’s guidance on pregnancy discrimination in over 30 years.
The guidelines provide that the Pregnancy Discrimination Act (PDA) covers discrimination based on current pregnancy, past pregnancy, a woman’s potential to become pregnant, a woman’s intention of becoming pregnant, and medical conditions related to pregnancy and childbirth. Regarding a woman’s potential to become pregnant or intention, the guidelines explain that employment decisions related to infertility treatment and the use of contraceptives may implicate Title VII. The guidelines provide that employers can violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, regardless of whether the contraceptives are prescribed for birth control or for medical purposes. The U.S. Supreme Court’s recent Hobby Lobby decision involving closely held corporations’ religious rights to refuse to provide certain contraceptives puts an interesting spin on this provision.
The new guidelines also provide that “employers may have to provide light duty for pregnant workers.” This is in direct contrast to its previous position that if an employer provided light duty to employees with on-the-job injuries, the employer was not required to offer those light duty positions to pregnant or disabled employees. Under the new guidance, an employer may not deny such light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.
Additionally, lactation is now covered as a pregnancy-related medical condition, which means that an employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules for routine doctor appointments to address non-incapacitating medical conditions, then it must allow female employees to change their schedules for lactation-related needs. Of course, the Fair Labor Standards Act (FLSA) already requires covered employers to provide reasonable break time for employees who are nursing or breastfeeding mothers to express breast milk.
One of the most notable aspects is that the guidelines spell out for the first time how the Americans with Disabilities Act (ADA), as amended, applies to pregnant workers. The EEOC emphasizes that pregnancy or a related medical condition or impairment will almost inevitably be considered a disability under the ADA. The guidelines also emphasize that any discrimination against female workers based on past or prospective future pregnancies is illegal.
Males were not excluded from the new guidelines. The guidelines also make clear that leave related to pregnancy, childbirth or related medical conditions can be limited to women affected by those conditions. However, parental leave—leave for purposes of bonding with a child and/or providing care for a child—must be provided to similarly situated men and women on the same terms. This is nothing new for employers covered by the Family Medical Leave Act (FMLA) which already provides that both mothers and fathers are entitled to take FMLA leave for the birth of their child and to bond with their child.
What does this mean for employers? With the issuance of this guidance, it is clear that pregnancy discrimination is on the EEOC’s radar. As these are only “guidelines” issued by the EEOC and not formal regulations, how the courts will respond to these guidelines remains to be seen. Employers should be cautious in how they approach any pregnancy-related issue in the workplace. Specifically relating to the ADA, if a pregnant employee raises a concern about any medical condition or impairment, employers should be on alert and be aware of their obligation to engage in the interactive process with the employee.