EEOC Issues New Pregnancy Discrimination Act Guidance

family child visitationEmployment blogs were en fuego a couple weeks ago about the new Pregnancy Discrimination Act guidance from the EEOC. (It must have brought a lot of traffic to the EEOC. Their website crashed for a few days this week. I was unable to pull the new guidance to discuss it.) The guidance clarifies important interactions between the Pregnancy Discrimination Act and the Americans with Disabilities Act. It also addresses expanding protections under the Pregnancy Discrimination Act for the lactation provisions of the Affordable Care Act (ACA).

The purposes of EEOC guidance are to guide EEOC in enforcing employment discrimination statutes and help employers shape their policies. The EEOC guidance is not “law”; but it is often persuasive evidence of how federal employment statutes should be interpreted. The guidance presents an opportunity for employees to learn about their rights and how an employer may discriminate against them.

Key Points in the New EEOC Pregnancy Discrimination Act Enforcement Guidance

Discrimination on lactation is sex discrimination

1. The ACA added new provisions to the Fair Labor Standards Act recognizing that lactating mothers need a place to express milk at work. Following that policy protecting the employment of new mothers, the EEOC thought it was a good idea to point out that lactation is a pregnancy-related condition and discrimination on that basis may violate the Pregnancy Discrimination Act as well as the new FLSA provisions from the ACA.

Cannot exclude insurance coverage for children or pregnancy

2. Also along with the ACA’s expansion of insurance through the employer mandate, the EEOC asserts that the employers providing insurance cannot exclude coverage for pregnancy, childbirth and medical conditions related to pregnancy or childbirth. Childbirth coverage is expensive and that can encourage employers to want to trim costs by cutting it out. This is an easy point. Covering other medical conditions but not pregnancy and childbirth is pretty much as black and white as pregnancy-related discrimination gets.

Employers cannot force leave

3. The Pregnancy Discrimination Act requires that employers provide leave periods for pregnancy and childbirth if the employer would provide leave for similar short term medical conditions; however, the employer cannot force the employee to take leave for childbirth, pregnancy-related medical conditions, or neonatal care, even if the employer is doing so with the most altruistic of intents to protect the fetus/child/mother/expectant mother. Federal courts are clear. No matter how well-intentioned, this conduct is paternalistic. It treats pregnant women differently from other employees. Employers should not make medical decisions on behalf of their employees. Employers are free to have more generous leave policies for maternity leave but they cannot force employees to take advantage of them.

Past pregnancy issues may form the basis for sex discrimination

4. Discrimination on the basis of pregnancy or childbirth is not limited to current pregnancies. The EEOC considers discrimination on past pregnancies (e.g. having kids) or the potential to become pregnant in the future. The EEOC guidance does not create endless protections for mothers based upon having ever birthed a child. The closer the time period between childbirth and the adverse employment action on the basis of the childbirth, the more likely a pregnancy or childbirth-related discrimination claim exists. However, there is no bright light test between when it becomes lawful to discriminate against a mother for having children versus unlawful discrimination on the basis of childbirth.

Light duty assignments

5. Pregnant mothers can request light duty assignments. The employer must fairly consider the pregnant mother for such positions if available. The employer does not have to create light duty assignments or alter the employee’s current job duties to accommodate the pregnancy but if the positions already exist or the employer would make those adjustments for other employees with short term medical conditions then it needs to treat pregnant mothers similarly.

ADA and PDA issues

6. The EEOC guidance expands and clarifies the Pregnancy Discrimination Act’s relationship with the ADA. Under the ADA, pregnancy and childbirth are not disabilities. However, medical conditions caused by pregnancy and/or childbirth can be disabilities under the ADA. Those impairments are subject to the ADA’s protections. Under the ADA the employee has greater rights to accommodations that include reassignments or alterations beyond what the PDA requires.

It is important to recognize that the ADA’s accommodation provisions will not swallow the PDA. The enforcement guidance pulls a tighter connection between the ADA and PDA than prior guidance; but employees should be cautious about assuming that any pregnancy-related condition will necessarily trigger ADA protections.

error: Content is protected !!
Scroll to Top