We have discussed pregnancy discrimination in previous articles and have outlined cases wherein pregnancy discrimination has taken place. The Equal Employment Opportunity Commission recently issued a new Enforcement Guidance on Pregnancy Discrimination and Related Issues that will benefit pregnant women and some men, as well.
Addressing the rising tide of discrimination charges based on pregnancy or pregnancy related issues over the last few years, the EEOC has taken a stance that will ensure greater enforcement of ADA (and amendments) and PDA provisions related to pregnant women and new parents. This Guidance hasn’t been reviewed since 1993, and was a long time coming, given the fact that in fiscal year 2013 there were approximately 5300 charges of pregnancy discrimination filed signaling what EEOC Chair Jacqueline A. Berrien described as a “persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.”
The Guidance states that: In 2008, a study by the National Partnership for Women & Families found that pregnancy discrimination complaints have risen at a faster rate than the steady influx of women into the workplace. This suggests that pregnant workers continue to face inequality in the workplace. Moreover, the study found that much of the increase in these complaints has been fueled by an increase in charges filed by women of color. Specifically, pregnancy discrimination claims filed by women of color increased by 76% from FY 1996 to FY 2005, while pregnancy discrimination claims overall increased 25% during the same time period.
The issues most commonly alleged in pregnancy discrimination charges have remained relatively consistent over the past decade. The majority of charges include allegations of discharge based on pregnancy. Other charges include allegations of disparate terms and conditions of employment based on pregnancy, such as closer scrutiny and harsher discipline than that administered to non-pregnant employees, suspensions pending receipt of medical releases, medical examinations that are not job related or consistent with business necessity, and forced leave.
The systemic nature of the allegations has led some EEOC Commissioners to applaud the new Guidance, even though it comes at an odd time, considering the United States Supreme Court is slated to hear the case of Young v. United Parcel Service. The Young case focuses on whether, and in what circumstances, the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations.
The basic principles of the PDA state:
- An employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and
- Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.
While the Americans with Disabilities Act (Amendments Act) addresses pregnancy related issues (like preeclampsia and gestational diabetes) and considers them disabilities requiring accommodation, the EEOC Guidance goes beyond that in several important ways. It also takes the requirements of the Pregnancy Discrimination Act (PDA) and broadens them.
The EEOC states that it will read the ADA and the PDA in a broad sense and will consider any pregnancy related condition as being subject to accommodation as with any other qualifying disability. Furthermore, the PDA will be read to require employers to offer light duty assignments to any pregnant employee, just as if that employee were not pregnant, but were the victim of some other sort of disability for which the employer already offers light duty assignments.
The language of the ADA, PDA and Title VII does not state that pregnancy is considered a disability, in and of itself. In fact, while the ADAAA does interpret all disabilities and pregnancy related disability broadly, it does not actually go so far as to state that all pregnancy related conditions are to be considered ‘disabilities’ under the Act. The EEOC Guidance remedies that.
By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.
The Guidance begins with a discussion of the prevalence of pregnancy related discrimination and its growing significance in EEOC case loads. The initial statements set the tenor of the policy indicating that employers are forbidden from treating pregnant employees any differently than any employee with a non-pregnancy related condition. The Guidance itself is broken down into four parts.
Part 1 explains the PDA’s prohibition against discrimination, and outlines exactly the types of discrimination to which it applies; including discrimination because of a present pregnancy, discrimination because of a previous pregnancy and discrimination because of a potential pregnancy or because of a woman’s potential to become pregnant. It also discusses forms of discrimination that will be subject to the new enforcement procedures of the EEOC.
Part 2 discusses the ADA and its impact on the definition of a disability on pregnant employees, especially when any pregnancy related condition would be subject to the requirements for employer accommodation. It also discusses various accommodations and which would be acceptable.
Part 3 touches on other laws that affect pregnant employees, specifically the Family Medical Leave Act and certain state laws.
And Part 4 discusses best practices for employers.
The Guidance also discusses parental leave (that is, leave to bond with, or care for the baby once it is born). It states clearly that an employer is prohibited from treating mothers and fathers differently when it comes to parental leave and that if parental leave is available for a mother, it must also be made available to the father. The guidance states:
“Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purposes.”
All in all, the new Guidance is a win for pregnant employees and their families. Hopefully it survives next year’s decision in the Young v. UPS case coming before the Supreme Court. SCOTUS has not been shy about gutting EEOC guidance in the past, as evidenced by the Vance v. Ball State case and University of Texas Southwestern Medical Center v. Nassar. Both of those cases involved the Supreme Court rejecting definitions and guidelines produced by the EEOC, substituting something less favorable to employees in each situation.
If you feel that you have been discriminated against at work because of a pregnancy, past, present or future, or if you have been denied leave due to a pregnancy related condition, contact Stephen Danzq & Associates at (877) 789-9707, or use the Contact Form on our website to schedule a free consultation today. Stephen Danzq was named one of California’s Super Lawyers three years in a row for his tireless dedication to employees in the state and around the world. He has more than three decades of experience as an employment lawyer, defending the rights of employees only, never taking cases on behalf of employers or big business.
We look forward to defending your rights.