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Carlos A. Padilla
Antonio L. García
On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance). This was the first review since the Guidance was first issued in 1983. The Commission asserted the need to update prior guidance in light of developments in the law over the past thirty years. Apart from the Guidance itself, the EEOC also issued a set of Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues and a Fact Sheet for Small Businesses: Pregnancy Discrimination.
The Guidance explores how the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”) apply to pregnant workers. Among the topics addressed by the EEOC are:
1. The fact that the prohibition on pregnancy discrimination applies not only to a current pregnancy, but discrimination based on a past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
2. Pregnancy-related medical conditions are also protected, including gestational diabetes, pregnancy-related sciatica, preeclampsia and lactation.
3. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the Americans with Disabilities Act and the types of accommodations that may be necessary.
4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so. (Employers cannot take an adverse employment action against a pregnant employee due to concern about her health and safety if the employee is able to perform her job.)
5. The requirement that parental leave (as distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
6. Harassment based on pregnancy is prohibited.
7. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
8. Employers may not discriminate against a female employee based upon her decision to use contraceptives. An employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy.
Some of the issues addressed in the Guidance, as well as its timing, have raised controversy. The Guidance was approved along party lines, with the three Democratic Commissioners in favor and the two Republican commissioners voting against the Guidance. The Republican Commissioners expressed concern about the fact that the Guidance was not made available for public comment before issuance. In addition, the two Republican Commissioners opposed issuing the Guidance before the US Supreme Court has the opportunity to pass judgment on some controversial issues addressed in the Guidance. On July 1, 2014 the US Supreme Court granted certiorari for the Fourth Circuit Court of Appeals’ decision in Young v. United Parcel Service, Inc. where the 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 for certain non-pregnant employees, such as employees injured on the job. Critics have also questioned the statutory basis for the requirement that employers grant reasonable accommodation for pregnant and lactating employees even if the employee is health and not disabled.
This Guidance does not have the force of law and is of only persuasive value to courts. However, it indicates the thinking at the EEOC on pregnancy related issues. Some states have adopted pregnancy accommodation laws that are similar to the EEOC’s Guidance.
©2014 Fiddler, González & Rodríguez, P.S.C. This Watch has been prepared by Fiddler, González & Rodríguez, P.S.C. for informational purposes only and does not constitute legal advice. This information does not create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. Fiddler, González & Rodríguez, P.S.C. and its members assume no responsibility to inform you of additional changes in law or any other legal issues related to the matters discussed in this e-mail.
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