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EEOC Updates Pregnancy Discrimination Act Enforcement Guidance

by Martin Salcedo, Esq. - The Human Equation on 8/27/2014
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In 1978, the Pregnancy Discrimination Act (PDA) was added to Title VII of the Civil Rights Act to prohibit employment discrimination based on pregnancy, childbirth and related medical conditions. In July 2014, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance regarding pregnancy in the workplace. It has been over 30 years since the EEOC last issued any PDA guidance.

The EEOC’s guidance identifies two fundamental requirements of the PDA:

  • Covered employers, which are generally employers with 15 or more employees, may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions.
  • Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA, which covers all aspects of employment, including firing, hiring, promotions and fringe benefits (leave, health insurance, etc.), prohibits discrimination based on an employee’s:

  • Current pregnancy: An employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth or a related medical condition was a motivating factor in the adverse employment action. The EEOC emphasizes that this form of discrimination is prohibited even if the employer believes it is acting in the employee's best interest.
  • Past Pregnancy: An employer cannot discriminate against an employee or applicant based on a past pregnancy or pregnancy-related medical condition or childbirth.
  • Potential Pregnancy: An employer cannot discriminate based on an employee's intention or potential to become pregnant. For example, an employer may not exclude a woman from a job involving processing certain chemicals out of concern that exposure would be harmful to a fetus if the employee became pregnant. According to the EEOC, concerns about risks to a pregnant employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman of childbearing capacity.
  • Medical Condition Related to Pregnancy or Childbirth: Individuals affected by pregnancy, childbirth or related medical conditions must be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. For example, an employer must treat a pregnant employee who is temporarily unable to perform the functions of her job the same as it treats other employees, including male employees, who are similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave or fringe benefits.

The PDA also makes it 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 a supervisor takes an adverse employment action against an employee (firing, demotion, etc.).

The enforcement guidance includes a number of best practices to help employers comply with the PDA, such as:

  • Developing, disseminating and enforcing a PDA policy.
  • Providing PDA training to managers and supervisors.
  • Responding to complaints promptly and thoroughly and taking effective corrective action if necessary.
  • Protecting applicants and employees from unlawful retaliation.
  • Evaluating any restrictive leave policies to determine whether they disproportionately impact pregnant employees.
  • Understanding that the Americans with Disabilities Act may also need to be considered when dealing with pregnancy-related issues.
  • Reviewing employment policies and practices to identify and correct those that may disadvantage women affected by pregnancy, childbirth or related medical conditions.

The release of the PDA enforcement guidance may be a sign that the EEOC is increasing its efforts to eliminate pregnancy discrimination in the workplace. Employers would be wise to do the same.

If you would like to learn more about controlling employment-related liabilities, check out The Human Equation’s library of online courses or contact us.

The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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