On July 14, 2014, for the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying the terms of pregnancy discrimination law under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). The guidance focuses on the interplay between the PDA and ADA and interprets the PDA as requiring employers to provide reasonable accommodations to pregnant employees with work restrictions, whether or not they are qualified as disabled. It also confirms that recent amendments to the ADA make it easier for pregnant workers to demonstrate that their pregnancy-related impairments qualify as a disability under the ADA, requiring employers to provide reasonable accommodations for such impairments.
Under the PDA, an employer is prohibited from hiring, firing, demoting or taking other adverse actions against an employee based on pregnancy, childbirth, or a related medical condition. The ADA protects individuals from employment discrimination on the basis of disability, limits how and when an employer may make medical inquiries or require medical examinations of employees and applicants, and requires that employers provide reasonable accommodations to employees and applicants with disabilities. The EEOC emphasizes that employers must treat pregnant employees the same as non-pregnant employees who are similar in their inability to work due to disability.
Significantly, the guidance requires employers to provide reasonable accommodations to pregnant employees, even in cases of certain normal pregnancies. While pregnancy itself does not constitute a disability under the ADA, the limitations on daily activities—even those resulting from a normal pregnancy—may prompt the need for reasonable accommodations under the PDA. Under the ADA, employers are required to provide reasonable accommodations to a disabled employee that allows the employee to perform the essential functions of the position. An employer may only deny reasonable accommodations if it would result in an undue hardship or the situation creates a direct threat to the safety of the employee, co-workers or others. Reasonable accommodations for pregnant employees take the form of accommodations similar to those provided to individuals with disabilities, such as providing more frequent breaks, allowing a pregnant employee to keep a bottle of water at a work station where generally prohibited, or allowing a pregnant employee to use a stool to sit on for a job generally performed while standing.
The EEOC interprets the PDA to require employers to provide equal access to pregnant employees for benefits such as light duty, leave without pay, parental leave, fringe benefits, retirement benefits and seniority. It also recognizes that accommodations must be made for breastfeeding or lactating employees. The guidance defines lactation as a “pregnancy-related medical condition” and suggests that a lactating or breastfeeding employee may have an actionable claim against an employer if denied the ability to change their schedule or take leave for lactation or breastfeeding-related needs.
While pregnancy itself is not an impairment that constitutes a disability as defined in the ADA, the guidance suggests that many pregnancy-related impairments may qualify as disabilities. Pregnant women often suffer from conditions such as pregnancy-related anemia, gestational diabetes, nausea that causes dehydration, and pelvic inflammation causing severe pain or difficulty walking. These conditions may require a pregnant employee to take early medical leave or sick leave. The guidance strongly suggests that pregnancy-related impairments such as those noted above constitute qualified disabilities under the ADA and require employers to provide reasonable accommodations for such impairments.
The EEOC sets forth a detailed list of best practices for employers to adopt to reduce the chance of pregnancy-related PDA and ADA violations. To reduce the risk of exposure to liability, employers should:
- Develop, disseminate and enforce strong policies based on the requirements of the ADA and PDA, and regularly train managers and employees about their rights and responsibilities related to pregnancy, childbirth and related medical conditions.
- Respond to pregnancy-related discrimination complaints quickly and effectively.
- Refrain from asking questions about an applicant or employee’s pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.
- Ensure that a restrictive leave policy (such as restrictions on leave during a probationary period) does not disproportionately impact pregnant employees and ensure that a pregnant employee may qualify for leave as a reasonable accommodation.
- Develop a process for expeditiously considering reasonable accommodation requests by employees with pregnancy-related disabilities and for granting accommodations where appropriate.
The EEOC’s guidance is available at: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.