By:  Ruth Kraft, Esq. 

For the first time in over 30 years, the EEOC has issued a comprehensive update on pregnancy discrimination to recognize the effect of case law with respect to the Pregnancy Discrimination Act (PDA) in conjunction with the Americans with Disabilities Act (ADA). 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 problems and that women affected thereby must be treated the same as other persons similar in their ability or inability to work. Among the highlights are the following:
  1. PDA covers not only a current pregnancy but discrimination based on past pregnant or a women’s potential to become pregnant;
  2. Lactation is a covered pregnancy-related medical condition;
  3. Circumstances under which an employer may be required to offer light duty for pregnancy workers;
  4. Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  5. Prohibition against pregnant workers who are able to do their jobs to take leave;
  6. Requirement that parental leave, which is distinct from a leave associated with childbearing or recovery from childbirth, be provided to similarly situated men and women on the same terms;
  7. When employers may have to provide reasonable accommodations for workers with pregnancy related impairments under the ADA; and
  8. Best practices for employers to avoid unlawful discrimination against pregnant workers.

IMPORTANT SIDE NOTES:
  • If an employer takes an adverse action not knowing of the pregnancy, there can be no finding of intentional pregnancy discrimination. Even though an employer may not discriminate against a worker who seeks time off for an infertility procedure (which would apply to males as well as females), exclusions of all fertility medical coverage is general neutral and does not violate Title VII of the Civil Rights Act.
  • Even in the post-Hobby Lobby era, an employer may not make employment decisions based on a female employee’s use of contraception. However, let me add that there are other elements of the guidance which appear to be the EEO’s attempt to backdoor mandated contraceptive coverage. I am not getting into that in today’s blog because of my sense that these sections will not hold up based on the Supreme Court decision.
  • Caregiving responsibilities post-birth are not within the ambit of the PDA; however, they could be actionable if an employer discriminates based on a protected characteristic.
  • The Bona Fide Occupational Qualification defense (BFOQ) still exists but is being construed in the narrowest possible terms by the administration.
  • If an employer does not provide light duty assignments, it does not violate the PDA by a denial of requested light duty because it applies the same restrictions to other workers similar in their ability or inability to work.

REMINDER: Although Title VII does not require an employer to provide pregnancy related or child care leave if it offers no other leave for temporary illness or family obligations, FMLA does require private employers with 50 or more employees as well as the public sector, to do so. FMLA is inapplicable to smaller businesses; therefore, it is essential to confirm that your employee handbook does not refer to FMLA and grant such benefits as a pro forma!

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Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.