|Beth A. Slagle
In response to the steadily rising rate of pregnancy-related claims of workplace discrimination, the Equal Employment Opportunity Commission (EEOC) has issued new guidance that gives more protection to employees who are pregnant, have recently had children or want to take leave to care for a new child.
The first part of the EEOC’s guidance addresses the Pregnancy Discrimination Act (PDA) in the first update since it was enacted in 1978. The PDA is an amendment to Title VII of the Civil Rights Act of 1964, which prohibits employers with 15 or more employees from discriminating against employees on the bases of race, color, religion, sex or national origin. The PDA clarifies that prohibited discrimination based on sex extends to matters related to pregnancy, childbirth or related medical conditions. Thus, employers may not fire, refuse to hire, reduce pay, demote or otherwise negatively affect the working conditions of an employee because of matters related to pregnancy or childbirth.
The EEOC’s new guidelines use a variety of scenarios and examples to illustrate employers’ actions that it considers discriminatory in relation to current, past or possible future pregnancies. Examples include:
- A janitor tells her boss that she is pregnant. Despite her assertions that she can still perform her job, her boss is concerned that the physical demands of the job are bad for the baby and forces the worker to take leave right away. By the time the employee gives birth, she has exhausted her leave and is fired.
- A nurse is fired shortly after returning from maternity leave, even though her supervisor assured her that her job would be safe. Although her employer claims that it had to eliminate her position because of over-staffing, it did not dismiss any other workers, nor is there evidence that there is not enough work to do.
- An executive tells her supervisor that she is thinking about having a second child. Her manager has a negative reaction, and voices concerns that she won’t be able to handle her job responsibilities. Two weeks later, the woman is demoted to a lower-paid position with less demanding job duties.
The EEOC requires employers to offer the same protections to men as women when requesting leave to care for a child. For example, if an employer offers new mothers six months of paid leave to bond with their new babies, they must offer the same benefit to new fathers.
The second part of the EEOC’s guidance addresses for the first time how impairments related to pregnancy and childbirth may be covered by the Americans with Disabilities Act (ADA) in certain situations. While pregnancy itself is not a disability under the ADA, medical conditions related to pregnancy may qualify as a protected disability.
The ADA requires employers to provide reasonable accommodations to employees with disabilities. For pregnant employees, the most commonly requested accommodation is a light duty, which may mean that the employee does not have to lift heavy objects or perform certain physically-taxing tasks. The EEOC does not require employers to accommodate pregnant workers’ requests for light duty. If the employer provides light duty jobs to employees in other circumstances, however, such as those with an injury or recovering from surgery, it must also provide light duty options to pregnant women.
In most cases, the most important aspect of a light duty request is whether it affects the primary function of the job. For example, a pregnant woman who works in a warehouse may not be able to perform primary job functions if she cannot lift more than 20 pounds. Unless the employer accommodates other warehouse workers who cannot lift heavy weights, such as a worker with a broken arm, the employer may have the right to dismiss the pregnant employee. A contrary example may be an administrative assistant who lifts heavy boxes only when the office receives its paper supply every other month. Because heavy lifting is a very small part of her job, it would be little hardship to the company to work around her restriction.
The key theme in the EEOC’s new guidance is that employers must treat employees who are pregnant, have recently had a child or may have children in the future equally with workers in comparable scenarios. Employers must make decisions based solely on employees’ ability to perform the functions of their job, and not apply any stereotypes about the expectations about what an employee may or may not be able to do.
Beth Slagle has practiced law for more than 20 years and focuses her practice on business disputes and employment law. Beth’s work has earned her a spot in Best Lawyers in America since 2010, and she is the chair of the firm’s Insurance Coverage Litigation Group. She can be reached at [email protected] or 412.456.2890.
This material is for informational purposes only. It is not and should not be solely relied on as legal advice in dealing with any specific situation.