Earlier this week the Equal Employment Opportunity Commission issued its first set of guidelines related to pregnancy discrimination in 30 years. While these guidelines do not carry the full effect and force of law, they do have the potential to persuade courts in broadening the scope of pregnancy discrimination analyses.
From the EEOC press release:
“Among other issues, the guidance discusses:
The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
Lactation as a covered pregnancy-related medical condition;
The circumstances under which employers may have to provide light duty for pregnant workers;
Issues related to leave for pregnancy and for medical conditions related to pregnancy;
The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
Best practices for employers to avoid unlawful discrimination against pregnant workers.”
There are a number of points of interest in the new guidelines, particularly the EEOC’s expanded definition of pregnancy discrimination, its recognition of lactation as a medical condition, and that the Pregnancy Discrimination Act requires employers to make reasonable accommodations for pregnant employees.
EXPANDED DEFINITION OF PREGNANCY DISCRIMINATION
The EEOC states specifically that the Pregnancy Discrimination Act prohibits discrimination against women because of current, past, and future pregnancies. Courts have long recognized this concept of discrimination, but the EEOC expands the scope of the term “future pregnancies” by including infertility treatment and contraceptive use as protected activities under the PDA. The guidelines state that under Title VII “an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo [infertility treatment],” and that “a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage.”
LACTATION IS A MEDICAL CONDITION RELATED TO PREGNANCY
The EEOC also address what has recently become a hot button topic here in Kentucky — lactation and nursing. The EEOC now classifies lactation as “medical condition,” and states that “[a]n employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address with other similarly limiting medical conditions.” The EEOC provides an example of how lactation needs should be accommodated:
[I]f an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions,55 then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Finally, the EEOC guidelines present a new requirement for employers: providing reasonable accommodations to pregnant workers. Reasonable accommodations are typically reserved for workers with disabilities through the Americans with Disabilities Act, or through on-the-job injury scenarios. While pregnancy is neither a disability or injury, the EEOC recognizes that pregnancy carries with it limitations on life activities similar to some disabilities. Under that reasoning, the EEOC has now determined that a violation of the Pregnancy Discrimination Act can be established when a pregnant worker is denied light duty or other accommodations, but the same or similar accommodations were provided to similarly situated disabled workers.
As noted above, these guidelines are not law, and do not supplant existing law as it relates to pregnancy discrimination. However, the guidelines do represent a giant step forward in how we tend to view issues related to pregnancy discrimination, and will almost certainly be persuasive to courts when ruling on PDA cases. The EEOC has the entire set of guidelines up on its website, as well as a Q&A and Fact Sheet regarding the new guidelines.
With the issuance of these new guidelines, the law regarding pregnancy discrimination may begin to shift. Therefore, it is imperative that you seek legal counsel immediately if you believe you have been the victim of pregnancy discrimination, in order to fully understand the options available to you.