New EEOC Guidance Clarifies Protections for Pregnant Employees and Fathers – Pregnancy Discrimination
The updated enforcement guidance begins by restating statutory requirements under the Pregnancy Discrimination Act (PDA)–that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. Following an overview of the PDA, the U.S. Equal Employment Opportunity Commission's (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues is divided into four parts:
- Part I provides guidance on the prohibition against pregnancy discrimination, including the individuals to whom the PDA applies, the ways in which violations of the PDA can be demonstrated, and the PDA's requirement that pregnant employees be treated the same as employees who are not pregnant but who are similar in their ability or inability to work, focusing especially on light duty and leave policies;
- Part II addresses the impact of the Americans with Disabilities Act's (ADA) expanded definition of “disability” on employees with pregnancy-related impairments, particularly when employees with pregnancy-related impairments would be entitled to reasonable accommodation, and describes specific accommodations for pregnant employees;
- Part III briefly describes requirements beyond the PDA and the ADA that affect pregnant employees, including the Family and Medical Leave Act and relevant state laws; and
- Part IV contains best practices for employers.
The updated guidance provides the EEOC's position on a number of key issues that substantially impact employers, including:
- 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 under the ADA;
- 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 male and female employees on the same terms;
- The circumstances under which employers may have a duty to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the specific types of accommodations that may be necessary; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
Parental Leave for Mothers and Fathers
In addition to clarification regarding pregnant employees, the new EEOC Guidance also warns employers to avoid treating men and women differently when it comes to parental leave (i.e., leave for purposes of bonding with a child and/or providing care for a child). Part I of EEOC Guidance reiterates, “For purposes of determining Title VII's requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).”
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 purpose. EEOC Guidance also provides numerous examples of valid and invalid employment policies. For example, the Guidance describes an example of a Discriminatory Parental Leave Policy…“In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer's policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.”
If you have any questions about the Pregnancy Discrimination Act or about a situation you are experiencing at work, please call us toll free at 888-500-8469 to obtain a free case evaluation.