Pregnancy Based Discrimination

Pregnancy Discrimination and Related Issues

On 14 July 2014, the Equal Employment Opportunity Commission (EEOC) issued a comprehensive update on Enforcement Guidance on Pregnancy Discrimination and Related Issues regarding the Pregnancy Discrimination Act and the Americans with Disabilities Act (ADA) as they apply to pregnant workers. Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make it clear that discrimination based on pregnancy, childbirth, or related medical condition is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. PDA states women affected by pregnancy, childbirth, or related medical conditions must be treated in the same manner as other applicants or employees who are non-pregnant but similar in their ability or inability to work.

Both the PDA and ADA applies to employees in the federal sector. The PDA covers all aspects of employment, including firing, hiring, promotion and fringe benefits, such as leave and health insurance benefits. Pregnancy itself is not a disability, but the impairments related to pregnancy can be a disability. Pregnant workers and job applicants are not excluded from the protection of the ADA. It makes it much easier for pregnant workers with pregnancy-related impairments to be protected and to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under ADA, unless the accommodation would result in significant difficulty or expense (“undue hardship”). These pregnancy-related impairments must currently or in the past have substantially limit one or more major life activities.

Pregnant workers are protected from discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy and medical conditions related to pregnancy or child birth.

The Pregnancy Discrimination Act guidance discusses:

1. Coverage of not only pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant

2. Lactation as a covered pregnancy-related medical condition

3. Circumstances under which employees may have to provide light duty for pregnant workers

4. Issues related to leave for pregnancy and for medical conditions related to pregnancy

5. Prohibition against requiring pregnant workers who are able to do their jobs to take leave

6. The requirement that parental leave be provided to similarly situated men and women on the same terms

7. Types of reasonable accommodations for workers with pregnancy-related impairments.

Harassment.  It is unlawful to harass a woman because of pregnancy, childbirth, or a related medical condition. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive environment or when it results in an adverse employment decision (fired or demoted).

Workers with Caregiving Responsibilities. Discrimination against a worker with caregiving responsibilities violates Title VII if it is based on sex, and violates the ADA if it is based on a family member’s disability. For example, an employer violates Title VII by treating a female employee with young children less favorably than a male employee with young children when deciding on work opportunities, based on a belief that the mother should focus more on the children than on her career. In addition, an employer violates the ADA where it takes an adverse action, such as refusing to hire or denying promotion, against a mother of a newborn with a disability over concerns that she would take off a lot of time for the child’s care or that the child’s medical condition would impose high health care costs.

For additional reading on the PDA view the EEOC Press Release or Questions and Answers.