The Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating allegations of discrimination and other unlawful employment practices, issued a revised Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Enforcement Guidance”) on July 14, 2014. This is the first comprehensive update that the agency has done with regard to pregnancy discrimination since 1983. The revised document discusses the restrictions on employers under the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination as a type of unlawful sex or gender discrimination. It also discusses how the Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Amendments Act of 2008 (ADAAA), relate to pregnancy discrimination.
Title VII, as amended by the PDA, prohibits employment discrimination, which can include disparate treatment, harassment, and denial of reasonable accommodations, based on pregnancy and medical conditions related to pregnancy. The Enforcement Guidance notes that this applies not only to current pregnancies, but also to both past and potential pregnancies. An employer may not discriminate based on an employee’s past pregnancy or pregnancy-related issues, nor may they discriminate based on factors like an employee’s intention to become pregnant, use of fertility treatments, use of contraception, or any actual or perceived risks to the employee of becoming pregnant.
Discrimination based on pregnancy could be obvious, such as when an employer fires or refuses to hire someone because she became pregnant, but it could also be much more subtle. Disparate treatment in assignment of light duty, breaks, and paid or unpaid leave could constitute pregnancy discrimination.
Medical conditions related to pregnancy include lactation, and employers must make the same reasonable accommodations for a lactating employee as an employee with a similarly-limiting medical condition. This might include allowing breaks to breastfeed or use a breast pump several times during an eight-hour shift.
Employers are not expressly prohibited under Title VII and the PDA from discriminating against an employee because of additional caregiving responsibilities after giving birth. The Enforcement Guidance notes, however, that an employer who reassigns employees with newborn or young children may not discriminate in these decisions on the basis of sex.
A very narrow exception exists to the prohibition on pregnancy discrimination, known as the “bona fide occupational qualification” (BFOQ) defense. To avoid liability under Title VII based on a BFOQ, an employer must prove that pregnancy, or the possibility of pregnancy, “actually interferes with the employee’s ability to perform the job.” Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991).
Pregnancy and related conditions are not included in the ADA’s definition of “disability.” 29 C.F.R. § 1630.2(h), and therefore courts have generally held that pregnancy is not, by itself, covered by the ADA. The ADAAA expanded the criteria for determining whether a condition qualifies for ADA protection. The Enforcement Guidance therefore states that impairments related to pregnancy, such as difficulty with lifting heavy objects, walking, or even standing for an extended period of time may make a person eligible for ADA protection.
The pregnancy discrimination attorneys at Phillips & Associates represent the rights of employees, former employees, and job seekers in the New York City area in claims for unlawful employment practices like discrimination, retaliation, or wrongful termination. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (212) 248-7431.
More Blog Posts:
New York Assembly Bill Would Improve State Law Protections Against Pregnancy Discrimination, New York Employment Attorney Blog, June 26, 2014
New York City Pregnancy Discrimination Ordinance Helps Woman Get Her Job Back, New York Employment Attorney Blog, February 27, 2014
EEOC Considers Case of UPS Worker Allegedly Forced Into Unpaid Leave Due to Pregnancy, New York Employment Attorney Blog, April 16, 2013