August 25, 2014
The Equal Employment Opportunity Commission issued Enforcement Guidance: Pregnancy Discrimination and Related Issues on July 14, 2014. While much of the Guidance covered basic, long standing concepts concerning pregnancy and discrimination under the Pregnancy Disability Act (PDA), certain points asserted in the Guidance are novel and others bear repeating for employers.
One new and predominant theme from the Guidance is pregnancy should be treated the same as a disability. The Guidance has a fairly lengthy section discussing how pregnancy issues can qualify as disabilities under ADA. The Guidance goes further and states that a pregnant employee is entitled to all the same accommodations provided a disabled employee even if the pregnant employee does not have a disability. The EEOC premises this position on the legal requirement that pregnant employees be treated the same as “other persons not so affected but similar in their ability or inability to work”. In short, the EEOC’s position is that pregnant employees are entitled to the same treatment as disabled employees.
Based upon this concept of treating pregnant employees the same as other employees who are “similar in their ability or inability to work”, the EEOC takes the position that if light duty is offered to any employees, then it also must be offered to pregnant employees. The EEOC specifically states that if an employee has a light duty work policy which applies only to employees with work place injuries, pregnant employees must be offered the same light work duties if their condition so requires. The EEOC takes this position despite acknowledging a string of Court decisions holding to the contrary.
The EEOC also notes that employers who do not offer adequate leave for pregnancy are probably guilty of violating the PDA based upon a “disparate impact” theory. The EEOC states if an employer’s policies grant inadequate leave to cover pregnancy, even during the first year of employment, the employer must prove business necessity for the rule and a “mere articulation of reasons” is insufficient.
Finally, it is interesting to note that the EEOC also touched upon discrimination against non-pregnant employees, namely fathers. The Guidance notes a distinction between a leave “due to physical limitations imposed by pregnancy or childbirth” (“medical leave”) and leave for bonding with the child (“parental leave”). The Guidance expressly states that providing parental leave for mothers, but not fathers, is discriminatory and illegal.