The Pregnancy Discrimination Act, which is an amendment to the Civil Rights Act of 1964, prevents the unfavorable treatment of an applicant or employee because of pregnancy, childbirth, or a related medical condition. Pregnancy has a very broad definition under the Act, and includes everything from the reproductive process to post-berth activities, including lactation.
On July 14, 2014, the EEOC issued its first guidance since their 1983 publication of a Compliance Manual chapter on the subject. In summarizing the EEOC’s new position, EEOC Chair Jacqueline A. Berrien said “Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work.” In the EEOC’s Strategic Enforcement Plan, they made it clear that pregnancy discrimination was a primary objective of the agency, and, as a result, this new Enforcement Guidance is not much of a surprise. Along with the guidance, the EEOC issued a fact sheet and Q&A sheet, which can be found at http://www.eeoc.gov/eeoc/newsroom/release/7-14-14.cfm.
What are the significant changes? When the Pregnancy Discrimination Act, known as the “PDA,” was enacted there was no Americans with Disabilities Act (“ADA”). In 2009, the ADA was amended and broadened to include many impairments that were not considered disabilities under the old version of the Act. Interestingly, both the old and new versions of the ADA specifically exclude pregnancy as a disability.
However, the EEOC, and even some courts, have concluded that pregnancy related medical conditions may be disabilities. One example of a pregnancy related medical condition would be preeclampsia, which is high blood pressure associated with pregnancy. This means that an employee who has a “disability” (like a pregnancy related medical condition), has access to all the rights under the ADA, including requesting a reasonable accommodation.
While the portions of the Guidance that discuss pregnancy related medical conditions may come as no surprise to employers, the Guidance did pack a new punch as to “normal pregnancies.” The new Guidance says that (now) employers MUST consider reasonable accommodations for women withnormal “uncomplicated” pregnancies if the employer offers reasonable accommodations to employees with disabilities – which they are required to do under the ADA! The bottom line is that the EEOC has created a reasonable accommodation requirement for normal pregnancy!
In addition, the EEOC’s new Guidance requires employers that offer light duty for work-related injuries to offer light duty to pregnant employees who may require it as well. The Guidance will also effect the application of the Nursing Mothers Act and the Affordable Care Act, among effecting other changes.
What Should You Do?
- Look at the employees’ job description and make sure they accurately reflect the functions and duties of the position.
- Work with the employee to determine the essential job-related limitations caused by the individual’s disability.
- Identify potential accommodations and how each would enable the individual to perform the essential functions of the job and the impact on the employer’s business.
- Keep the interactive process moving forward; any failure to communicate may be interpreted as a sign of bad faith.
- Consider the preference of the individual and select the accommodation that is most appropriate for both the employee and the organization.
- Document, document and document dates and details of working through the interactive process.
This Guidance is not the last word. The Supreme Court of the United States has taken a case that will decide whether employers that provide work accommodations to non-pregnant employees must provide them to pregnant employees as well. As a result of this decision, the Guidance may have to be revised or possibly even scrapped altogether.
Due to the new and ever-changing nature of this area of the law, should you run into any conflict or question with an employee or applicant that would implicate this Guidance you should contact an experienced employment lawyer.