The Equal Employment Opportunity Commission (EEOC) recently issued enforcement guidance regarding the obligations of an employer to avoid discriminating against a pregnant employee. The Pregnancy Discrimination Act of 1978 made it clear that discrimination based on pregnancy, childbirth, or related medical conditions is a prohibited form of sex discrimination. The EEOC enforcement guidance addressses employer practices that the EEOC considers permissible and impermissible based on its interpretation of the Pregnancy Discrimination Act of 1978 (PDA), Title VII of the Civil Rights Act of 1964 (Title VII), and Title I of the Americans with Disabilities Act (ADA). And while it reiterates the law regarding pregnancy discrimination, it also seeks to expand the reach of the current law by requiring accommodation of pregnancy under the PDA and, and by stating that employers should treat pregnant employees in the same manner as similarly situated employees injured on the job. Accordingly, women who are pregnant or affected by medical conditions related to their pregnancy must be treated by employers in the same manner that they treat other employees with regard to the ability to work.

Covered Employers

The Pregnancy Discrimination Act and the Americans with Disabilities Act generally apply to private and to state and local government employers with 15 or more employees. Certain state laws may apply to employers with as few as three employees.

Prohibited Employer Conduct

An employer may not fire, refuse to hire, demote, or take other adverse action against, including with regard to pay, job assignments, promotion, layoff, fringe benefits, or leave, an employee if her pregnancy, childbirth, or any related medical condition was a motivating factor in the decision.

The prohibition against discrimination includes treatment based upon fertility or childbearing capacity. Thus, policies restricting women from jobs that expose women to harmful chemicals are prohibited. Employers are also prohibited from discriminating against employees who intend to become pregnant. You should not, therefore,

• Demote an employee following an announcement that she is trying to become pregnant;
• Ask an applicant whether she is pregnant or intends to become pregnant; or
• Make assumptions about a pregnant employee’s attendance, schedule, or ability to perform the job.

The EEOC will consider these actions in evaluating a charge of pregnancy discrimination.

An employer may not discriminate against an employee because of a past pregnancy, childbirth, or related medical condition. You may not, for example, discharge an employee shortly after a return from pregnancy leave following the birth of her child, if for that reason. Close proximity in time between a return to work and a change in status, coupled with a questionable explanation, will be considered evidence of pregnancy discrimination.

Other examples of prohibited conduct include the following:

• Discharging a pregnant employee for absenteeism if her absence is covered by a sick-leave policy;
• Requiring pregnant employees to first exhaust sick leave before using other types of accrued leaves, if you do not have similar policies for employees who seek leave for other medical conditions;
• Imposing a shorter maximum leave for pregnant employees than for other types of medical or short-term disability; or
• Treating pregnant employees who become disabled, differently from other employees regarding their inability to work.

Medical Conditions Related to Pregnancy or Childbirth

Medical conditions related to pregnancy and childbirth include back pain, preeclampsia, gestational diabetes, complications requiring bed rest, and the after-effects of a delivery. The 2008 amendments to the Americans with Disabilities Act make it easier for women with pregnancy-related impairments or conditions to demonstrate that they have disabilities requiring protection. Thus, pelvic inflammation, carpal tunnel syndrome, disorders of the uterus or cervix, sciatica, and high blood pressure, if related to pregnancy or childbirth, have been considered impairments.

Reasonable Accommodations

Where a woman is impaired as a result of her pregnancy or childbirth, you must provide a reasonable accommodation. Examples of reasonable accommodations include the following:

• Assigning nonessential job functions, such as
  occasional lifting, to others;
• Permitting more frequent breaks;
• Modifying work schedules;
• Permitting telecommuting;
• Granting additional leave;
• Purchasing or modifying equipment, such as a
  chair; or
• Temporarily reassigning the employee to a light-duty
  position.

The Americans with Disabilities Act also protects parents of a newborn child who has a disability. You may not, for example, refuse to hire the mother or father of such a newborn because you are concerned with the amount of time the employee might need to take off to address the child’s condition or because you are concerned about the potential for high medical costs.

The Family and Medical Leave Act

Under the provisions of this Act, you must, if you have 50 or more employees, provide up to 12 weeks of leave in a 12-month period to parents of newborns for the birth of the child, to care for a newborn, for placement of a newly adopted newborn with the employee, and for the employee to address her own serious health condition or a spouse’s health condition.

Health Insurance

If you have a health insurance benefit plan, you must apply the same terms and conditions for pregnancy-related costs as for those costs not related to pregnancy. If your plan covers pre-existing conditions, it must also cover the costs of an insured employee’s pre-existing pregnancy. If you are a closely held for-profit corporation whose owners have religious objections, you may decline to cover certain types of contraceptives.

Reasonable Break Time for Nursing Mothers

Employers are required under the Patient Protection and Affordable Care Act to provide nursing mothers with a reasonable break time to express breast milk until the child’s first birthday. For this purpose, you must provide a private place that is not a bathroom. You need not pay an employee for the time spent in this activity. Certain employers with fewer than 50 employees may, under certain circumstances, be exempt from this requirement of a break time if it would impose an undue hardship.