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More than thirty-five years ago, Congress enacted the Pregnancy Discrimination Act to make clear that discrimination based on pregnancy, childbirth, or related medical conditions constitutes sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. In outlawing pregnancy discrimination, Congress enunciated the view that pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working. Thus, the PDA requires employers to treat pregnant employees the same as employees who are not pregnant and who are similar in their ability or inability to work. The hallmark of the PDA, therefore, is one of equality.

Additional ADA Protections

Because pregnancy also is a medical condition, another federal law, the Americans with Disabilities Act,  may come into play in providing further legal protections for persons who become pregnant and develop complications related to pregnancy or childbirth. Title I of the ADA prohibits employment discrimination against persons on the basis of disability and requires that an employer provide reasonable accommodation for an employee or job applicant with a disability. Pregnancy itself is not considered to be a disability. Under the original version of the statute enacted in 1990, the courts generally took the position that complications of pregnancy and pregnancy related impairments also did not rise to the level of an ADA covered disability. Accordingly, pregnant employees, even though suffering from pregnancy related impairments or conditions, were not covered by the ADA's protections.

That changed in 2008, however, when Congress enacted the ADA Amendments Act of 2008. The ADA rejects the stringent standard the courts had imposed for determining whether an individual was disabled and makes it much easier for all individuals with medical impairments, including those with pregnancy related conditions, to claim the protections of the statute. As a result, pregnant workers who have medical complications resulting from pregnancy may find coverage under the ADA and become entitled to reasonable accommodation. In other words, not only may an employer be required to treat pregnant employees the same as other non-pregnant employees, as mandated by the ADA, an employer now may be required to provide preferences to pregnant employees by making reasonable accommodations to pregnant workers who suffer from pregnancy related complications that rise to the level of a disability.

EEOC Pregnancy Discrimination Guidance

The enhanced protections that the ADA affords to pregnant employees recently was emphasized by the U.S. Equal Employment Opportunity Commission, the agency that enforces both the PDA and the ADA, when it issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues. The EEOC's Enforcement Guidance, which was issued on July 14, 2014, is the first time that the Commission has issued guidance on the law in over 30 years. In that Guidance, the EEOC, also for the first time, takes the position that it now may be illegal under federal law for an employer to refuse to give preferences in the form of reasonable accommodations to pregnant workers, who due to pregnancy related conditions need assistance in performing the essential functions of the job.

The EEOC's Enforcement Guidance comes at a time when the number of pregnancy discrimination complaints has been increasing. As EEOC Chair Jacqueline Berrien has stated:

[d]espite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.

The most recent EEOC reports show a 46% increase in pregnancy related charges over a fourteen year period from fiscal years 1997 to 2011. Since the start of fiscal year 2011, the Commission has filed over 45 lawsuits involving pregnancy discrimination, and during this time, the EEOC has recovered through its litigation program approximately $3.5 million for victims of pregnancy discrimination. Moreover, from fiscal years 2011 through 2013, the EEOC increased the monetary benefits obtained through the resolution of pregnancy discrimination charges, without resort to litigation, from $13.9 to $17.0 million.

The Commission issued its Enforcement Guidance after a three to two vote along partisan lines. In issuing the Enforcement Guidance, EEOC Chair Berrien stated, ``[t]his guidance will aid employers job seekers, and workers in complying with the Pregnancy Discrimination Act and the Americans with Disabilities Act, and thus advance the EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.'' According to Chai Feldblum, one of the EEOC Commissioners who supported the Enforcement Guidance:

there's a reason we need to update the guidelines, and that's because this problem [pregnancy discrimination] hasn't gone away. This is an enduring problem in America's workplaces – we're not where we need to be with regard to fair, equal treatment of pregnant workers. We're just not.

Commissioners Constance Barker and Victoria Lipnic, who opposed the Commission's issuance of its Enforcement Guidance, questioned the decision not to make draft guidance available for public review and comment before final enforcement guidelines were issued. Both Commissioners Lipnic and Barker also opined that the Enforcement Guidance went beyond the requirements of existing law. Commissioner Lipnic criticized the Guidance for "read[ing] out of the law the requirement that pregnant workers be treated the same, not better than, other workers for all employment purposes.''Commissioner Barker also expressed concern that the EEOC was trying to "jump the gun'' on Congress's consideration of the Pregnant Workers Fairness Act (S. 942/H.R. 1975), which would amend the PDA to expressly require employers to grant reasonable accommodations to pregnant workers.

What Constitutes Pregnancy Discrimination?

Many of the aspects of the EEOC's Enforcement Guidance on pregnancy discrimination reiterate the basic principles pertaining to the Act's coverage and requirements. Generally speaking, the PDA prohibits discrimination based not only on an employee's current pregnancy, but also on an employee's past pregnancy, potential or intended pregnancy, or medical conditions related to pregnancy or childbirth. The "most familiar'' form of pregnancy discrimination, according to the EEOC, occurs where anemployer refuses to hire, fires, or takes any other adverse action against a female employee because she is pregnant, without regard to her ability to perform the duties of the job. Discrimination against an employee based upon past pregnancy may occur where an employer terminates an employee after a child is born or during parental leave.

Discrimination based upon potential or intended pregnancy often arises in three types of situations: (1) where an employer limits jobs based upon the perceived risk to an employee's childbearing capacity, (2) where an employer discriminates based upon an employee's intention to become pregnant, or (3) where an employee undergoes infertility treatment. The EEOC's Enforcement Guidance also points out that an employer may violate Title VII by making employment decisions based upon a female employee's use of contraceptives or by excluding coverage of prescription contraceptives whether they are prescribed for birth control or other medical purposes.

The Enforcement Guidance further reaffirms that an employer may not discriminate against an employee with a medical condition relating to pregnancy or childbirth and must treat the employee the same as others who have similar abilities or inabilities. As the EEOC explains, this means that employers must provide the same benefits, including leave, for pregnancy related medical conditions as the employer provides for other medical conditions and may not discriminate based upon lactation or breast feeding, or the decision of a woman to have or contemplate having an abortion.

If you feel you have been mistreated by your employer or in your place of employment and would like to explore your employment law options, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.

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Source: Jonathon R. Mook, EEOC Announces Groundbreaking Rules For Pregnancy Accommodations, 14-10 Bender's Labor & Employment Bulletin 01 (2014)