EEOC Publishes New Guidelines Regarding Pregnancy Discrimination

July 2014
Number 42

The Equal Employment Opportunity Commission (EEOC) recently published Enforcement Guidance: Pregnancy Discrimination and Related Issues (the Guidance) regarding the federal Pregnancy Discrimination Act (PDA). The Guidance is not legally binding on employers, but can assist them in understanding their obligations toward pregnant employees.

The PDA prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. The PDA also requires that employers treat women affected by pregnancy, childbirth or related medical conditions the same as non-pregnant employees who are similar in their ability or inability to work. Non-compliance with the PDA may amount to unlawful sex discrimination, which Title VII of the Civil Rights Act of 1964 (Title VII) prohibits.

The Guidance suggests that because Title VII prohibits sex discrimination, under the PDA, discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth, including lactation may be unlawful. Employers may not treat a pregnant employee differently based on stereotypes relating to pregnancy or assumptions regarding her job capabilities or commitment to remain with the company after childbirth.

Notably, the Guidance clarifies that discrimination based on lactation can also violate Title VII, stating that “because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.” Therefore, an employer must provide a lactating or breastfeeding employee the same accommodations provided to other employees with similar medical conditions that may need to be addressed throughout the workday.

Additionally, the Guidance provides that employers may not discriminate against employees based on infertility treatment, other pregnancy-related medical conditions, abortion or use of contraceptives. The Guidance states that not only may an employer not take an adverse employment action against an employee based upon her use of contraception, but that employers may also violate Title VII by not providing health insurance that covers prescription contraceptives. This position may be in conflict with the recent United States Supreme Court case, Burwell v. Hobby Lobby Stores, Inc., __ U.S. __ (2014), which found that closely held companies may decide not to provide health care coverage for prescription contraceptives.

The timing of the Guidance’s release has been brought into question in light of the U.S. Supreme Court’s decision to review the Young v. United Parcel Service, Inc. case where a federal appeals court ruled that the PDA does not require employers to offer light duty to pregnant employees who have work restrictions even if light duty is available to non-pregnant employees. Further, pending before Congress is the Pregnant Workers Fairness Act which seeks to amend the PDA to require employers to grant reasonable accommodations to pregnant employees, an obligation which the Guidance presumes already exists under the PDA.

It is important to note that the Guidance, while informative and persuasive, is not binding legal authority. Employers should be careful to adhere to the obligations established by statutes and case law. Additionally, pregnant employees and employees with pregnancy-related medical issues may have additional rights under other federal laws, such as the Americans with Disabilities Act, the Patient Protection and Affordable Care Act, and the Family and Medical Leave Act. State laws may also grant greater protection than what is provided under the PDA and Title VII. A copy of the Guidance can be found on the EEOC’s website.

If you have questions regarding the EEOC’s Guidance, PDA, Title VII or other employer obligations, please contact one of our eight offices located statewide. You can also visit our website , follow us on Facebook or Twitter , or download our Client News Brief App .

Written By

Roberta L. Rowe
Partner
Fresno Office
rrowe@lozanosmith.com

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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