Government and Health Care

EEOC updates guidelines related to pregnant employees

August 1, 2014
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The U.S. Equal Employment Opportunity Commission has issued updated guidelines on pregnancy discrimination. The guidance addresses issues related to the Pregnancy Discrimination Act and the Americans with Disabilities Act.

This is the first update the agency has undertaken related to pregnancy discrimination since 1983, making it a very big deal considering how much the workforce has changed over the past 31 years.

“Pregnancy is not a justification for excluding women from jobs 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,” said EEOC Chair Jacqueline A. Berrien.

“Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”

Some of the issues covered in the guidance include: the fact that the Pregnancy Discrimination Act includes not only women who are currently pregnant but also discrimination based on past pregnancy or the potential to become pregnant; lactation as a covered pregnancy-related medical condition; issues related to leave for pregnancy and for medical conditions related to pregnancy; 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; and 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.

Rebecca Strauss, a Miller Johnson attorney, said likely the most significant change for employers is the light duty requirement in accordance with ADA.

“The EEOC guidance says employers must provide the same light duty opportunities for pregnant employees that it does for other employees,” Strauss said.

“Many employers have policies that allow for light duty for on-the-job work injuries. … This expands it to pregnant employees, as well. If you allow employees injured on the job that have lifting restrictions (for instance) to have light duty for a period of time, then you also have to allow that for pregnant employees.”

Strauss pointed out employers do not have to provide light duty assignments for someone who is injured outside of the work setting, which may be why pregnancy was previously not seen as a reason for providing light duty.

In fact, there is a case headed to the U.S. Supreme Court this fall dealing with this issue. Young v. United Parcel Service examines “in what circumstances an employer that provides work accommodations to non-pregnant employees with work limitations must provide comparable work accommodations to pregnant employees who are similar in their ability or inability to work.”

“UPS had a policy, which on its face wasn’t discriminatory,” Strauss explained. “It said light duty would be offered to employees under the following circumstances. … The important one was if you were injured on the job or (had) work limitations caused by a workplace injury.”

Strauss said the EEOC’s position is that those types of policies are in effect discriminatory against pregnant workers.

Strauss said the EEOC likely issued its updated pregnancy guidance to have its own say on the issue before the Supreme Court takes it up.

“The Supreme Court now will have a chance to review the EEOC’s guidance and let us know if it’s going to stand or not,” she said.

Strauss said another significant piece of the EEOC guidance directly contradicts the Supreme Court’s Hobby Lobby decision.

“Under the EEOC guidance, employers are not allowed to decide not to provide contraceptive coverage if they provide other types of preventive care coverage, which almost all benefit plans do, of course — vaccinations, those sorts of things. They took the Hobby Lobby decision head-on.”

The guidance does not and cannot trump the Supreme Court’s decision in the Hobby Lobby case, she said.

“Courts are bound by the Supreme Court decision … but employers should be aware if the EEOC investigates or there is some sort of complaint filed with the EEOC and it comes into their business and starts poking around, they may have an issue with the EEOC,” Strauss said.

The EEOC also made clear lactation is considered a condition of pregnancy and lactating women are entitled to protections. Those protections include necessary breaks and a private place other than a bathroom where they can use a breast pump.

Finally, Strauss said another big point the EEOC guidance makes is employers cannot make decisions based on the health or safety of the fetus or the mother.

“In other words, they can’t take a paternalistic kind of approach in job assignments,” she said. “For instance, if someone is in a position that they would consider dangerous to the fetus, the employer can’t make the decision that once the woman becomes pregnant, she should be transferred or fired or whatnot. It’s not up to the employer to make decisions about risk; it’s up to the mother.”

The EEOC guidance comes at a time when several states and the federal government are making strong statements about discriminating against pregnant women.

In fact, just this summer, Michigan Gov. Rick Snyder signed the Breast Feeding Anti-Discrimination Act, which allows women to breastfeed in any public space. Businesses, schools and other organizations cannot deny “goods, services, facilities, privileges, advantages or accommodations” due to breastfeeding.

“In today’s day and age, I think overt sex discrimination is becoming less and less frequent, but pregnancy discrimination or stereotypes of women who are pregnant or who may become pregnant — I think those are still alive and well,” Strauss said of the workplace.

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