EEOC Expands Protections for Pregnancy and Pregnancy-Related Conditions
The following article was written by Eileen Maguire, Esq., The Gilliland Law Firm, P.C.
August 18, 2014 08:32 AM
On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance (the “Guidance”) that expands a female employee’s rights under the Pregnancy Discrimination Act (the “PDA”). Pregnancy and pregnancy-related conditions now encompass every aspect of the reproductive process, including conception (e.g., infertility treatment) and decisions not to conceive (e.g., contraceptives), pregnancy or termination of pregnancy (e.g., abortion), childbirth, and post-birth needs, including lactation and nursing.
EEOC also intends to scrutinize additional employment terms and conditions, including whether your agency’s health insurance benefits offer all available contraceptives and whether your agency treats applicants and employees claiming pregnancy-related impairments equal to applicants and employees claiming disabilities. EEOC justifies this expanded enforcement, in part, because employers are now subject to a number of new laws that were enacted after 1978 (when the PDA was enacted), such as the Americans with Disabilities Act, and its Amendments Act of 2008 (the “ADA”), the Family and Medical Leave Act and the Affordable Care Act.
Perhaps most controversial is EEOC’s requirement that agencies must now assess whether to reasonably accommodate certain pregnancy-related impairments. EEOC issued its controversial Guidance notwithstanding a case currently pending before the U.S. Supreme Court on whether the PDA requires reasonable accommodations. If the Supreme Court rules that the PDA does not require such accommodations, EEOC will need to revise its Guidance accordingly. Unfortunately, this case will not be decided until the Court’s Fall 2014-Spring 2015 term.
Some states and municipalities have already enacted laws requiring accommodation for pregnancy-related impairments precisely because the PDA has never been read to require accommodations. Agencies need to check their state and local laws for new developments in this area, as well.
Meanwhile, if an employee files a discrimination charge involving accommodation allegations under the PDA or the ADA, or both, and you are not yet subject to local laws requiring pregnancy-related accommodations, EEOC will scrutinize your actions and policies under the Guidance’s enforcement terms. A pregnancy-related impairment that may require accommodation could include cervical insufficiency, preeclampsia, cesarean section preparation or recovery periods, anemia, sciatica and carpal tunnel syndrome, gestational diabetes, nausea that can cause severe dehydration, abnormal heart rhythms, swelling and depression.
EEOC lists several examples of reasonable accommodations for pregnancy-related impairments such as modified work schedules, granting leave and temporary assignment to a light duty position. If an employee provides satisfactory documentation concerning her pregnancy-related impairment (e.g., the same as an employee with a disability), then your agency can only deny the request or need for an accommodation if the accommodation would create an undue hardship for your agency. The Guidance defines “undue hardship” as requiring “significant difficulty or expense.”
Of course the Guidance impacts more than an agency’s reasonable accommodation policies and practices. For example, agencies will also need to review their break policies for nursing mothers, parental leave policies and health benefits.
In light of the EEOC’s enforcement priorities and increased state law protections for pregnancy issues in the workplace, agencies should review the Guidance and the Question and Answer about the Guidance.
The Guidance is available here.
The Q&A about the Guidance can be found here.