The Sophisticated Employer Blog

On July 14, 2014, the EEOC issued updated Enforcement Guidance on Pregnancy Discrimination and Related Issues. The Guidance is available by clicking here.

Along with the Enforcement Guidance, the EEOC published a question and answer document about the guidance and a Fact Sheet for Small Businesses.

According to EEOC Chair Jacqueline Berrien, “Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, as well as the emergence of more subtle discriminatory practices. This Guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and the Americans with Disabilities Act, and thus advance EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.” 

The Guidance is divided into four parts: (I) The Pregnancy Discrimination Act; (II) Americans with Disabilities Act; (III) Other Requirements Affecting Pregnant Workers; and (IV) Best Practices. 

There are several important takeaways for employers that are highlighted in the Guidance:

• The PDA prohibits discrimination on the basis of a current pregnancy in addition to discrimination based on past pregnancy and discrimination based on a woman’s potential to become pregnant.

• The PDA covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant similarly-situated employees.  Thus, an employer that provides health insurance benefits must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy.

• Although pregnancy itself is not a disability, pregnant workers and job applicants may be entitled to a reasonable accommodation if they have a pregnancy-related impairment that qualifies as a disability.

• Examples of potential reasonable accommodations available to pregnant workers with disabilities might include allowing a pregnant worker to: take more frequent breaks; keep a water bottle at her work station; or use a stool.  In addition, providing a temporary assignment to a light duty position may be a reasonable accommodation.

• In very specific, narrow instances, an employer may claim that excluding pregnant or fertile women from certain jobs is lawful because non-pregnancy is a bona fide occupational qualification.  Keep in mind, the defense of a bona fide occupational qualification is an extremely narrow exception to the prohibition against discrimination on the basis of sex and to establish such a qualification an employer must show: (1) that pregnancy actually interferes with an employee’s ability to perform the job; and (2) that the qualification is based on objective, verifiable skills required by the job rather than vague, subjective standards. 

• If those responsible for taking an adverse action against an employee did not know the employee was pregnant, there can be no finding of intentional pregnancy discrimination. 

• Like other claims of discrimination brought under Title VII, an employer will be found to have discriminated on the basis of pregnancy if an employee’s pregnancy, childbirth, or related medical condition was “all or part of the motivation for an employment decision.”