EEOC Guidance on the PDA: Has Anything Changed?
By Rebecca G. Yanos, Esq. & Teresa O. Sirianni, Esq.*
The Equal Employment Opportunity Commission (EEOC) released updated Pregnancy Discrimination Enforcement Guidance on July 14, 2014, for the first time since the original Guidance was published in 1983. Now, over 30 years later and following the passage of the FMLA in 1993 and the Americans with Disabilities Act Amendments (ADAAA) in 2008, the new Pregnancy Discrimination Guidance is far more comprehensive in scope and has been described as “extremely far-reaching.” Pamela Wolf, J.D., EEOC’s Updated Pregnancy Discrimination Guidance is “Extremely Far-Reaching, (Sept. 14, 2014), http://www.employmentlawdaily.com/index.php/news/updated-pregnancy-discrimination-guidance-is-extremely-far-reaching/. The new Guidance outlines requirements under both the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), and it addresses the interaction with the FMLA as applied to pregnant workers and related medical conditions arising from pregnancy. As pregnancy discrimination complaints are on the rise, the new Guidance needs to be understood and implemented in order to avoid complaints alleging unlawful discrimination in the work place. Nat’l Partnership for Women & Families, The Pregnancy Discrimination Act: Where We Stand 30 Years Later (2008), (Sept. 6, 2014), http://qualitycarenow.nationalpartnership.org/site/DocServer/ Pregnancy_Discrimination_Act_-_Where_We_Stand_30_Years_L.pdf?docID=4281.
The PDA generally disallows an employer to discriminate against an employee based upon pregnancy, childbirth or related medical conditions, and it requires that pregnant women be treated in the same manner as other persons similar in their ability or inability to work. Although this language is not new relative to the PDA, the 2014 Guidance expounds on several areas that were previously left unclear and now conform to the ADAAA’s broad definition of disability.
I. Discrimination Based Upon Past Pregnancy or Potential to Become Pregnant
An employer may not discriminate against a woman for a past pregnancy or the potential to become pregnant in the future. This precludes an employer from discriminating against a woman for intending to become pregnant, trying to get pregnant or even based upon her ability to become pregnant. Enforcement Guidance: Pregnancy Discrimination and Related Issues, (Sept. 29, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#past.
II. Restriction From Performing Certain Jobs Due to Pregnancy and Availability of Light-Duty Work and Parental Leave
An employer may not restrict pregnant workers from certain jobs, such as a job with exposure to harmful chemicals, as an employer’s concern about risks to an employee or her fetus rarely justifies restrictions. The only justifiable limitations are those where the lack of childbearing capacity is a bona fide occupational qualification (BFOQ), such that lack of childbearing capacity is reasonably necessary to the normal operation of the business. Pregnant women are also protected from adverse employment actions based upon an employer’s fear that the stress of a job may affect pregnancy, or the fears or concerns of a pregnant employee’s co-workers or customers. Likewise, a pregnant employee must be provided the opportunity to perform light-duty work, if required as a result of the pregnancy, in the same way that an employer might offer light-duty work to employees who are not pregnant but who are similar in their ability or inability to perform their work duties. It is important to note that an employer may not require a pregnant woman to take leave at any point during her pregnancy if she is still able to perform her job. Leave to bond with and care for a newborn (parental leave) must be available to both men and women; thus, if an employer provides parental leave after the birth of a child to women, it must also provide this same leave, under the same terms, to men.
III. Lactation as Pregnancy-Related Medical Condition
Lactation is now viewed as a covered pregnancy-related medical condition, and, accordingly, less favorable treatment of any lactating employee may give rise to an inference of unlawful treatment. Enforcement Guidance: Pregnancy Discrimination and Related Issues, (Sept. 29, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#past. For example, the need to express breast milk during the workday requires the employer to allow employees to change their schedules or use sick leave to address lactation-related needs the same as employees who are permitted to change their schedules or use sick leave to address routine non-incapacitating medical conditions. The Guidance further suggests that this scenario is consistent with the Patient Protection and Affordable Care Act, which requires employers to provide reasonable break time and a private place for hourly employees who are breastfeeding to express milk.
IV. Reasonable Accommodations Required for Pregnancy-Related Impairments
The Guidance also addresses the broad coverage afforded by the ADAAA, suggesting that pregnancy-related impairments that substantially limit one or more major life activities without consideration of mitigating measures must be accommodated. Enforcement Guidance: Pregnancy Discrimination and Related Issues, (Sept. 29, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#past. This requirement also applies to an applicant or employee who has a record of a pregnancy-related disability based upon a prior pregnancy. Examples of accommodations that may be required for pregnant workers are:
- Redistribution of non-essential job functions (lifting);
- Modifying work policies, such as permitting pregnant workers to have more frequent breaks;
- Modifying work schedules to accommodate conditions, such as morning sickness;
- Permitting work from home if required; and
- Creating light-duty positions.
V. Best Practices
- Review, develop and circulate policies based upon the requirements in the ADA and PDA.
- Train managers/employees regarding the ADA and PDA, and provide multiple avenues of complaint.
- Respond promptly to pregnancy discrimination complaints; investigate, document and take corrective action as needed.
- Have a process in place for accommodation requests, and ensure light-duty policies are equally applied to all employees.
*Rebecca and Teresa work in our Pittsburgh, Pennsylvania office. Rebecca, an assocaite, can be reached at 412.803.1157 and firstname.lastname@example.org. Teresa is a shareholder. She can be reached at 412.803.1177 and email@example.com.
Defense Digest, Vol. 20, No. 4, December 2014
Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.