Supersedes chapter in 1983 compliance manual
The U.S. Equal Employment Opportunity Commission (EEOC) has just issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a fact sheet for small businesses. The Enforcement Guidance, Q&A document, and Fact Sheet are available on the EEOC's website.
This is the first comprehensive update of the Commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a compliance manual chapter on the subject. This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.
In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008 to individuals who have pregnancy-related disabilities.
"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," says 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. This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes."
Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy. The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.
Among other issues, the guidance discusses:
- 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
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
In February, 2012, the Commission held a public meeting to hear from stakeholders about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities. The Commission Meeting record was held open for 15 days following the meeting, to facilitate public comment (more information).
For a critical review of this enforcement guidance and the procedure by which it was issued, see Attorney Michael Soltis' blog posted on Jackson Lewis' website. Mike's posting also includes links to dissenting comments from two of the five EEOC Commissioners, who noted that the substance of the Guidance overstepped existing legal precedents and was a dramatic departure from existing law and EEOC Guidance on the Pregnancy Disability Act (PDA). Commissioners Constance S. Barker and Victoria A. Lipnic criticized the agency for not making the guidance available for public review and comment before it was brought to the Commissioners for a vote, noting that the move signaled a lack of transparency.