The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance, and a Fact Sheet for Small Businesses.
They are all available free online at eeoc.gov. (See URLs below).
This is the first comprehensive update of the Commission’s guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject. This guidance supersedes that document and incorporates significant developments in the law during the past 30 years. Private sector employers should be well informed about these issues in order to avoid unnecessary claims and litigation.
Pregnancy discrimination in employment is a kind of sex based workplace discrimination prohibited by the 1978 pregnancy discrimination amendments to the 1964 Civil Rights Act. In the state of Florida, the 1992 Civil Rights Act prohibits sex discrimination but does not specifically mention pregnancy. Nonetheless, the Florida Supreme Court, in Delva v. The Continental Group, Inc., interpreted the Florida statutes last year by a 6-1 vote to prohibit discrimination on the basis of pregnancy as a kind of sex-based discrimination. A bill to amend the Florida statute to include pregnancy discrimination failed to pass last year.
In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the new EEOC guidance also discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.
“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,” said EEOC Chair Jacqueline A. Berrien.
The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy.
Among other issues, the guidance discusses:
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
- Lactation as a covered pregnancy-related medical condition;
- The circumstances under which employers may have to provide light duty for pregnant workers;
- Issues related to leave for pregnancy and for medical conditions related to pregnancy;
- 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; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers.
Besides the PDA, pregnant employees also have rights under another federal law, The Family and Medical Leave Act (FMLA), which allows eligible employees of employers with 50 or more employees to take up to 12 workweeks of unpaid leave for, among other things, the birth and care of the employee’s newborn child and for the employee’s own serious health condition. The Department of Labor enforces the FMLA.
Also, Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide “reasonable break time” for hourly employees to express breast milk until the child’s first birthday. Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Employers with fewer than 50 employees are not subject to this requirement if it “would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business.”
The new EEOC Enforcement Guidance is available free online at:
http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm
A Q&A on the Guidance may be viewed at: http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm
A Fact Sheet for Small Businesses Regarding Pregnancy Discrimination is available at:
http://www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm
