On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued an updated enforcement guidance on pregnancy discrimination and related issues, and significantly widened the employee protections. The guidance addresses requirements under the Pregnancy Discrimination Act (“PDA”) and the application of the Americans with Disabilities Act, (“ADA”), as amended, to pregnant women.
Initially, the guidance sets out the PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions. An employer may not have policies that disproportionately affect pregnant employees unless they are job-related and consistent with business necessity. Further, an employer may not take adverse action on the basis of a past pregnancy, current pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth. Discrimination may take the form of harassment, the failure to provide light duty where provided to other employees who are similarly unable to perform their jobs, forced leave or unequal access to leave.
The guidance states that women affected by pregnancy, childbirth, or other related medical conditions must be treated the same as others not so affected but who have a similar ability or inability to work. In the most dramatic change from current law, an employer must treat a pregnant employee temporarily unable to perform her job the same as other employees temporarily unable to perform due to other circumstances and must provide similar accommodations. Thus, employers may have to provide pregnant employees with the same accommodations provided to employees with comparable disabilities. For example, if an employer offers light duty to disabled employees hurt on the job, the employer must offer the same light duty opportunity to pregnant employees.
Under the ADA, employees may be subjected to discrimination where the pregnancy or pregnancy-related condition qualifies as a disability and the employee has a disability, has a record of a disability, or is regarded as having a disability. Significantly, the guidance states that “[c]hanges to the definition of the term ‘disability’ resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to reasonable accommodation under the ADA.” Such accommodations may include more frequent breaks, altering job functions are performed, or providing a light duty assignment.
The above only highlights the provisions of the thirty-page guidance. Employers are encouraged to read the guidance along with the EEOC’s “Questions and Answers” to ensure their policies and practices are in compliance. Akerman’s Practice Group Update on the guidance may be accessed here.