For the first time since 1983, and partly addressing issues pending before the U.S. Supreme Court (see Alex Berg’s July 9 blog titled, “Supreme Court Will Decide What Accommodations Employers Must Make For Pregnant Employees”), the Equal Employment Opportunity Commission (“EEOC”) on Monday issued new enforcement guidelines on pregnancy discrimination under the Pregnancy Discrimination Act (“PDA”) that also cover possible workplace accommodation requirements. The guidelines are an effort to underscore that employers cannot discriminate against workers because of past, present or future pregnancies. Specifically, the EEOC stated that “Discrimination based on pregnancy, childbirth or related medical conditions is a prohibited form of sex discrimination.”
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;
- An employer’s responsibility to treat employees who cannot perform job duties due to pregnancy or related medical condition the same as other employees who are temporarily unable to perform their job duties;
- Lactation as a covered pregnancy-related medical condition;
- 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 Americans with Disabilities Act (“ADA”) and the types of accommodations that may be necessary (pregnancy itself is not a disability under the guidelines, but employees can have a pregnancy-related impairment that can be considered a disability if a major life activity is substantially limited); and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
The guidelines state that employers cannot terminate, refuse to hire, demote or take any other adverse action if pregnancy, childbirth or a related medical condition is “a motivating factor.” Sex-specific policies restricting women from certain jobs based on childbearing capacity — including jobs with exposure to harmful chemicals — are also generally prohibited. It also constitutes illegal discrimination to reassign a woman recently back from maternity leave to less desirable work based on the assumption that she, as a new mother, would be less committed to her job. Employers are additionally “prohibited from discriminating against an employee because she has stated that she intends to become pregnant.”
For Maryland employers, the EEOC’s guidance should not require a significant change in the way pregnant employees are treated. As we have previously reported, since October 1, 2013, Maryland employers with 15 or more employees have been required to provide reasonable accommodations to pregnant employees, including:
- changing the employee’s job duties;
- changing the employee’s work hours;
- relocating the employee’s work area;
- providing mechanical or electrical aids;
- transferring the employee to a less strenuous or hazardous position,
- or providing leave.
The Text of the EEOC’s enforcement guidance is available Enforcement Guidance: Pregnancy Discrimination And Related Issues, the Q&A at Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, and the fact sheet at Fact Sheet for Small Businesses: Pregnancy Discrimination.