The United States Equal Employment Opportunity Commission (“EEOC”) has issued enforcement guidance on pregnancy discrimination and related issues (the “Enforcement Guidance”), interpreting the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) to give broad and sweeping protections to pregnant workers.
EEOC investigators will use the Enforcement Guidance to assess charges and determine whether to bring litigation, and courts are expected to give the Enforcement Guidance substantial weight. Thus, employers should carefully review the Enforcement Guidance and consider whether their policies and practices regarding pregnancy-related issues may need to be revised.
This is especially important given that pregnancy discrimination claims have increased 26 percent in recent years – and that the EEOC is making pregnancy discrimination an enforcement priority.
Indeed, as this Legal Update was going to press, a federal jury in California awarded a whopping $186 million in damages to a plaintiff who proved pregnancy discrimination against her former employer.
A. Pregnancy Discrimination Act
As interpreted by the EEOC, the PDA has two fundamental requirements. First, an employer may not discriminate “on the basis of pregnancy, childbirth, or related medical conditions.” Second, women affected by pregnancy, childbirth, or related medical conditions “must be treated the same as other persons not so affected but similar in their ability or inability to work.”
1. Discrimination “On The Basis Of” Pregnancy
The EEOC construes “pregnancy” broadly. In the agency’s view, an employer may not make decisions based on stereotypes or assumptions about the effect of a current, past, potential, or intended pregnancy on the employee’s ability to perform or commitment to the job. Similarly, except in narrow circumstances involving a “bona fide occupational qualification,” the EEOC prohibits employment decisions based on concerns about potential health risks of a pregnancy.
As construed by the EEOC in the Enforcement Guidance, the PDA gives breastfeeding and lactating protected status. The EEOC reasons that lactating is a pregnancy-related medical condition, as it is a physiological response to childbirth. Thus, an employment policy or practice that singles out lactating employees – such as a policy permitting employees to take paid breaks to drink coffee but not to express breast milk – would constitute unlawful pregnancy discrimination under this view of the PDA.
The EEOC also sees the PDA as protecting a woman’s right to use contraceptives. The Enforcement Guidance explains that because contraceptives are a means by which a woman can control her capacity to become pregnant, the PDA prohibits discrimination based on their use. In fact, the EEOC takes the position that “an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.”
Not all courts have endorsed the EEOC’s view of the PDA as to contraceptives. Similarly, while the Affordable Care Act (a/k/a “Obamacare”) requires employers to include prescription contraceptives in their health insurance coverage, the United States Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores opens the door to potential exemptions based on the Religious Freedom Restoration Act. Nonetheless, the EEOC appears poised to assert its position on contraceptives in its enforcement activity and is likely reviewing new filings for potential “test cases” – i.e., cases likely to result in court victories for the EEOC based on the specific circumstances involved.
2. Dissimilar Treatment Vis-à-vis Others
The PDA’s second chief requirement – to treat pregnant employees the same as similarly situated co-workers – is construed in the Enforcement Guidance to apply to all employment-related decisions, including those relating to job modifications, alternative assignments, leaves, and fringe benefits.
Under this interpretation:
Finally, while the PDA does not prohibit employment decisions based on an employee’s caregiving responsibilities to a child, the EEOC cautions that employers may not treat women with caregiving responsibilities differently than similarly situated men, as this would violate Title VII’s prohibition on sex discrimination.
B. Americans With Disabilities Act
While pregnancy, in and of itself, is not a disability under the ADA, the EEOC takes the position that a pregnancy-related impairment may constitute a disability under the statute if it substantially limits one or more major life activities, has substantially limited a major life activity in the past, or is regarded by an employer as a disability.
According to the EEOC, examples of pregnancy-related conditions that may constitute a disability under the ADA include: impairments to the reproductive system that make a pregnancy more difficult and require physical restrictions or limitations; impairments to musculoskeletal functions, such as pregnancy-related sciatica; impairments to digestive or genitourinary functions, such as severe dehydration caused by nausea; and impairments affecting endocrine functions, such as gestational diabetes.
The Enforcement Guidance also notes that the ADA may cover conditions that result from the interaction of a pregnancy with an underlying disability. To illustrate, the EEOC posits an employee who controls a neurological disability with medication, becomes pregnant, is unable to continue taking the medication on account of her pregnancy and, as a result, experiences a worsening of her neurological condition.
Employees with pregnancy-related disabilities – like employees with other types of disabilities – may be entitled under the ADA to a reasonable accommodation. The Enforcement Guidance states that such reasonable accommodations may include modifications to work equipment or devices, temporary reassignments to light duty work, and adjustments to an employee’s work schedule.
In light of the EEOC’s focus on pregnancy discrimination, as reflected in Enforcement Guidance that gives broad and sweeping protections to pregnant workers, we recommend that employers:
If you have any questions about the EEOC’s Enforcement Guidance or need assistance with any PDA- or ADA-related issues, please don’t hesitate to contact us.