United States: The EEOC Releases Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues

Last Updated: July 16 2014
Article by Michael S. Arnold

The EEOC released its updated enforcement guidance on pregnancy discrimination yesterday — the first time it's done so in more than 30 years. You can access the guidance and related documents here.

Specifically, as stated in the EEOC's press release, the guidance addresses:

  • 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.

Here are some quick takeaways we had from the guidance:

Employers May Violate the PDA if they Don't Reasonably Accommodate Pregnant Workers

In our June 9th post, we discussed at length the Young v. UPS case and the interplay between the Pregnancy Discrimination Act and the Americans with Disabilities Act. While the PDA does not include an explicit requirement that employers reasonably accommodate pregnant workers, we predicted that the EEOC would update its enforcement guidance to effectively read one into the statute. The EEOC has now effectively done so for the reasons we discussed in that post. Here is the relevant language from the EEOC's updated guidance:

"The ADAAA expanded the definition of disability to include employees with conditions requiring work-related restrictions similar to those needed by pregnant women. For example, someone who, because of a back impairment, has a 20-pound lifting restriction that lasts for several months would be an individual with a disability under the ADA entitled to reasonable accommodation, absent undue hardship. The same individual would be an appropriate comparator for PDA purposes to a woman who has a similar restriction due to pregnancy."

In other words, you will now have to reasonably accommodate the pregnant worker because she will be the same or similar to the temporarily disabled worker in her ability or inability to work. It will be interesting to see how, if at all, the Supreme Court addresses this issue and this updated guidance when it hears Young v. UPS appeal in its next term.

Pregnant Workers Much More Likely to Seek Protection Under the ADA as Well

The updated guidance also confirms that the recent amendments to the ADA now make it much easier for pregnant workers to demonstrate their pregnancy-related impairments qualify as disabilities under the ADA and are subject to reasonable accommodation. The guidance identifies various pregnancy-related impairments that could qualify as disabilities under the ADA.

The Guidance Identifies Several Potential Reasonable Accommodations for Pregnant Workers

Some examples identified in the guidance include:

  • Redistributing marginal functions that the employee is unable to perform due to the disability. Marginal functions are the non-fundamental (or non-essential) job duties.
  • Altering how an essential or marginal job function is performed (e.g., modifying standing, climbing, lifting, or bending requirements).
  • Modification of workplace policies (e.g. allowing an employee to have water on a table near the employee's desk despite a company policy prohibiting water near the workstation).
  • Purchasing or modifying equipment and devices (e.g. allowing an employee working at a counter to sit on a stool while she serves customers).
  • Modifying work schedules (e.g. allowing an employee to see a doctor during day and work an extra hour past normal shift).
  • Granting leave (which may be unpaid leave if the employee does not have accrued paid leave) in addition to what an employer would normally provide under a sick leave policy for reasons related to the disability.
  • Temporary assignment to a light duty position.

The standard rules apply to the accommodation – the accommodation must, of course, be reasonable, and the employer can select the one that it prefers and not the one that the employee prefers. It also can refuse to provide the accommodation if it would cause the employer undue hardship.

Treat Men and Women Equally When it Comes to Parental Leave

It's certainly okay to provide women with separate paid or unpaid leave to recuperate from childbirth or childbirth-related conditions. But you cannot provide additional paid or unpaid parental leave to bond and/or care for the child to women and not equally to men. Such a policy will violate the law according to the EEOC. Therefore, make sure that your parental leave-related policy makes this distinction.

The Hobby Lobby Fight Will Likely Eventually Make Into the Civil Rights Space

The guidance sidestepped any substantive comment on the recent Hobby Lobby decision's application to Title VII or other discrimination laws. In that case, the Supreme Court held that the Affordable Care Act's contraceptive mandate violated the federal Religious Freedom Restoration Act as applied to closely held family for profit corporations whose owners have religious objections to providing certain types of contraceptives. The guidance notes that an employer may violate the Pregnancy Discrimination Act by excluding prescription contraceptives from a health insurance plan that otherwise offers comprehensive coverage to its employees, but noted that it took no position whether certain employers, like those discussed in Hobby Lobby, might be exempt from the PDA's requirements under the First Amendment or under the Religious Freedom Restoration Act. We will certainly be tracking this issue going forward.

Recommendations

In our June 9th post, we noted several best practices that employers should consider as we were waiting for the EEOC's updated guidance. Now that the guidance has arrived, we continue to recommend these practices and restate them below:

  1. Consider accommodating your pregnant workers. The guidance confirmed what we expected: that employers may no longer routinely dismiss reasonable accommodation requests related to pregnancy. You should carefully review these requests to avoid potential liability.
  2. Try to be practical; see the bigger picture. If accommodating pregnancy requests will prove inexpensive, consider allowing them even if you believe not doing so is lawful. And even if the accommodation request may be expensive, measure it against the other potential benefits such as a corresponding increase in employee morale, your ability to retain valuable employees and your reputation in the market – benefits that may ultimately outweigh the cost of the accommodation and enhance your bottom line.
  3. Comply with ALL laws. You may already be subject to a state and/or local statutes (i.e. Maryland and New York City) that explicitly obligate you to reasonably accommodate pregnant workers. If you are and you aren't accommodating your pregnant workers, it's time to change course.
  4. Enforce policies consistently. Real problems arise for employers that reject outright requests by pregnant employees that they would grant for non-pregnant workers. This may seem obvious, but is lost on many employers who treat pregnancy-related requests uniquely. For example, all other things being equal, if you would advance a non-pregnant worker vacation days because she wanted to join her friends on a bachelorette party, then you should think twice before denying a vacation advance request by a pregnant worker who wants to rest at home in the last week of her term.
  5. Don't Make Decisions on Behalf of Pregnant Workers. Employers often get into trouble when they try to modify a pregnant employee's work situation (i.e. I am not going to let you lift anything heavy while you are pregnant). You can't do that except in very limited circumstances – if she is willing and able to perform the job, you usually must and should let her work.

We will update this post accordingly once we hear from the Supreme Court on the Young v. UPS case in its next term.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael S. Arnold
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions