In October 2016, the Equal Employment Opportunity Commission (EEOC) approved an updated Strategic Enforcement Plan from 2017 to 2021, to further its commitment to focus on “activities that are likely to have an impact in advancing equal opportunity and freedom from discrimination in the workplace.”
One area of focus is accommodations for pregnancy-related limitations. Although the EEOC’s focus on pregnancy discrimination dates back to 2012, the growing number of charges filed and the increased complexity of discrimination laws has made the issue a continued priority.
A Growing Trend
The EEOC receives an average of over 3,500 charges of pregnancy discrimination each year. Issues involved in lawsuits have been fairly consistent and mainly include charges of discharge based on pregnancy, and differing terms and conditions of employment based on pregnancy, such as closer scrutiny and harsher discipline for pregnant individuals, suspensions pending receipt of medical releases, medical examinations that are not job-related or consistent with business necessity, and forced leave.
In 2017 alone, thus far, the EEOC has settled multiple pregnancy discrimination cases for a total amount exceeding $400,000 in monetary damages. Additionally, the EEOC referred a lawsuit, United States of America v. School Board of Palm Beach County, Florida, to the Department of Justice, which settled early this year for $350,000. These numbers indicate a huge liability that employers may face and reiterate the importance of understanding laws that affect pregnancy in the workplace and the need to implement best practices to ensure compliance with such laws.
The EEOC enforces multiple laws that affect pregnancy in the workplace, namely the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act Amendment Act (ADAAA), other requirements under the Family and Medical Leave Act (FMLA) and various state laws. However, the EEOC has indicated its main focus to be centered on accommodating pregnancy-related limitations under the ADAAA and the PDA, so this post centers on those two laws.
Understanding Pregnancy Discrimination Act
The PDA generally prohibits a broad range of discriminatory employer conduct in the same way that discrimination based upon other protected class characteristics is prohibited under Title VII. Therefore, the PDA covers pregnancy and the whole childbearing process in all aspects of employment, including hiring, firing, promotions, benefits and treatment in comparison to nonpregnant employees.
Adverse treatment of pregnant women often stems from stereotypes and assumptions regarding job capabilities and commitment to the individual’s job. Decisions based upon these stereotypes and assumptions are violation of the PDA, even if they are made unconsciously or with the intent of benefiting the employee For instance, assigning an employee to light duty without their request, because the employer feels it would be in the best interest of the pregnancy.
Under the PDA, an employer may not discriminate in employment decisions against an employee on the basis of pregnancy, childbirth or related medical conditions, and must make those decisions based on the same criteria= as other persons who are similar in their ability or inability to work. However, the PDA contains no reasonable accommodation requirement specific to any condition related to pregnancy. This essentially means that employers should not treat a pregnant woman any differently because of her pregnancy. For example, if a woman is temporarily unable to perform her job duty due to a pregnancy or childbirth-related medical condition, her employer must treat her in the same way as it would treat any other temporarily disabled employee. If an employer allows temporarily disabled employees to take disability leave, then the employer also must allow an employee who is temporarily disabled due to a pregnancy or childbirth-related medical condition to take disability leave. If an employer has a policy which allows injured employees to request light duty assignments, a pregnant employee with medical restrictions should be allowed to request light duty assignments.
So, what then is considered a “pregnancy or childbirth-related medical condition” that would entitle a pregnant employee to accommodations? The ADAAA provides some guidance on this issue.
Understanding the Americans with Disabilities Act Amendment Act
The ADAAA protects individuals from employment discrimination based upon disability. Generally, pregnancy itself is not considered a disability under the ADAAA, but impairments related to pregnancy may qualify as disabilities. The threshold for what impairments qualify as a disability has varied among the circuit courts. However, the EEOC provided examples of pregnancy-related impairments that may be substantially limiting under the ADAAA, such as pregnancy-related anemia, pregnancy-related sciatica, gestational diabetes and pre-eclampsia.
An employee may be entitled to reasonable accommodations for limitations resulting from pregnancy-related conditions that rise to the level of a disability under the ADAAA. These accommodations can include, but are not limited to, modifying work schedules, temporary assignment of light duties or altering how a certain job function is performed. Employers may deny a reasonable accommodation to a disabled employee only if it would result in an undue hardship to the employer.
This article is the first in a series about pregnancy leave. To learn more about how employers can address potential confusion with pregnancy related laws, read Addressing Employer Confusion With Pregnancy Related Laws: What to Expect When Your Employees Are Expecting, for more details about terms associated with leave taken for pregnancy or childbirth-related purposes, check out Leave Only a Mother Could Love: The Care of Pregnancy and Parental Leave and for details about Pregnancy leave requirements, visit Pregnancy Leave: What’s Required?
Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.
