If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:
- Enforcement Guidance: Pregnancy Discrimination and Related Issues
- Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
- Fact Sheet for Small Businesses: Pregnancy Discrimination
Among the topics addressed by the EEOC are:
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
- Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
- The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
- Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
- The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
- When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.
All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.