On August 14, 2014, for the first time in more than 30 years, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination and related issues. According to the guidance, in the years since Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 there has been a significant increase in pregnancy discrimination charges. For example, in fiscal year 1997, the EEOC and state and local Fair Employment Practices Agencies (FEPA) received more than 3,900 pregnancy discrimination charges. In fiscal year 2013, however, 5,342 pregnancy discrimination charges were filed. A study published in 2008 by the National Partnership for Women and Families found that pregnancy discrimination complaints have risen at a faster rate than the influx of additional women into the workplace. Additionally, much of the increase in the number pregnancy discrimination complaints is due to an increase in charges filed by women of color. For example, charges of pregnancy discrimination filed by women of color increased 76% between fiscal year 1996 and fiscal year 2005, while overall pregnancy discrimination claims increased just 25% for the same time period. The claims include allegations of wrongful termination, as well disparate terms and conditions of employment. Accordingly, the EEOC issued the updated guidance to address the requirements of the PDA, including the application of the Americans with Disabilities Act (“ADA”) as amended in 2008 to individuals with pregnancy-related disabilities. The PDA and the ADA apply to employers with 15 or more employees.
Pregnancy Discrimination Act
Basic Requirements and Prohibitions
Under the basic requirements of the PDA, covered employers must treat women affected by pregnancy, childbirth or related medical conditions the same way they treat other similarly situated applicants or employees. This protection from discrimination extends to current pregnancy, past pregnancy, and potential pregnancy.
To succeed on a pregnancy discrimination claim, the claimant must show that her employer had knowledge of the pregnancy. The guidelines clarify that an employee may be able to prove notice through evidence that the claimant told the employer of the pregnancy or by showing the employer indirectly learned of the pregnancy, for example, through office gossip or because the pregnancy was noticeably obvious.
The guidelines also provide clarification regarding the long-standing prohibition against making decisions regarding an employee based on stereotypes or assumptions regarding job capability and commitment associated with pregnancy. For example, if an employer were to refuse to give a pregnant employee a position for which she was qualified for fear that she would have poor attendance due to her pregnancy or for fear that she might not return to work after the baby is born, the employer could be found to have discriminated against the employee on the basis of pregnancy.
The PDA also applies to past and potential future pregnancy. To succeed on a PDA claim regarding a past pregnancy, the employee must show a causal connection between the past pregnancy and the current adverse employment action. An employee will be more likely to show such a causal connection if there is close temporal proximity between the past pregnancy and the current adverse action (such as discharge during pregnancy-related medical leave or parental leave), and the employer’s explanation for the termination is not believable. For example, if an employee with consistently good reviews receives her first poor review after telling her employer of her pregnancy and then is terminated two weeks into her pregnancy-related leave, the timing of the termination would support a finding of unlawful pregnancy discrimination unless there is documentation of performance deficiencies, such as customer complaints. A lengthy delay between pregnancy and the adverse employment action, however, won’t foreclose a finding of discrimination where there is evidence that the pregnancy, childbirth or related medical condition motivated the adverse action.
With respect to potential pregnancy, employers must not discriminate against women with regard to job opportunities or benefits because they might get pregnant. Additionally, it is important for employers to understand that under the PDA an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman due to pregnancy, childbirth, or related medical conditions, even if the employer believes it is acting in the employee’s best interest. Thus, an employer cannot exclude a woman from a job due to a fear of harming a fetus or potential fetus. The guidelines specifically state that risk to a fetus will rarely justify sex-specific restrictions. The guidelines also specify that subjecting an employee to adverse employment action or refusing to hire an applicant because of an intent to become pregnant violates the PDA.
Additionally, in general, gender-neutral exclusion of infertility treatment from health coverage would not implicate the PDA or Title VII, but a gender-specific exclusion could do so. Additionally, under Title VII, an employer cannot terminate a woman because she uses contraceptives, and an employer’s health insurance must cover prescription contraceptives in the same way it covers prescription drugs, devices and services used to prevent the occurrence of medical conditions other than pregnancy. The Guidance does not address whether the Religious Freedom Restoration Act (RFRA) or the First Amendment to the U.S. Constitution might exempt some employers from Title VII’s requirements, as discussed in Burwell v. Hobby Lobby Stores, Inc. We anticipate litigation around this issue in the near future.
The Guidance also clarifies that Title VII doesn’t apply to employment decisions based on the cost associated with medical care for the employee’s offspring, but terminating an employee to avoid the cost of pregnancy-related impairment or impairments of the child may violate the ADA if the impairment constitutes a disability. The guidelines go on to specify that employers cannot terminate or otherwise subject employees to adverse employment action due to a decision to breast-feed or a decision regarding abortion.
Finally, the EEOC’s updated guidance also explains that employers must provide men and women equal leave time for bonding, a groundbreaking requirement because fathers typically receive a fraction of paid parental leave as compared to mothers. The guidance goes on to suggest that mothers should then be provided additional “childbirth” leave to physically recover from having baby.
Disparate Impact versus Disparate Treatment
Pregnancy discrimination claims are typically presented as either disparate treatment or disparate impact cases. In a disparate treatment case, the investigator at the EEOC must review the totality of the evidence to determine whether there is reasonable cause to believe that the challenged employment action was unlawfully discriminatory. For example, an explicit policy showing bias on its face and a link to the challenged action would be direct evidence of disparate impact. Additional factors include temporal proximity; more favorable treatment of individuals with similar ability or inability to work not affected by pregnancy, childbirth or related medical conditions; credibility of the given reason for the employment decision; and evidence that the employer violated or misapplied its own policy in undertaking the challenged employment action. For example, evidence that an employer discharged a pregnant employee for violating a personnel policy but only reprimanded non-pregnant workers for the same misconduct would likely lead to a finding of unlawful discrimination.
The guidance clarifies that although the PDA does not protect responsibility for caring for a child, some discriminatory actions against caregivers could be actionable if the discrimination is based on sex or other Title VII categories. For example, denying opportunities to women with children but not denying similar opportunities to men with children, or denying leave to care for a child to men but allowing women to take such leave, would likely be actionable under Title VII.
In some situations employers argue that excluding a pregnant employee from certain jobs is lawful because non-pregnancy is a bona fide occupational qualification (BFOQ). According to the EEOC’s guidance, however, the defense is an extremely narrow exception, which will only apply if the employer can show that the pregnancy actually interferes with a female employee’s ability to perform the job. Furthermore, the employer must be able to show that the defense is based on objective, verifiable skills required by the job rather than vague, subjective standards.
Disparate impact cases involve situations where the employer’s policies are facially neutral but disproportionately adversely impact women affected by pregnancy, childbirth, or related medical conditions. To prove disparate impact, employees typically have to provide a statistical showing that a specific employment practice has a discriminatory effect on workers in the protected group. If it can be shown that the challenged policy would negatively affect all or substantially all pregnant women, then statistical evidence might not be required. An employer can prove that the challenged policy is a business necessity by showing that the requirement is “necessary to safe and efficient job performance.” But, if it’s found that there is a less discriminatory alternative that meets the business need and the employer refused to adopt it, the employer could still be found to have violated the PDA. For example, if a woman applies for a job in a warehouse with a 50 pounds lifting requirement that she cannot meet due to pregnancy but she could meet the other job requirements and the employer does not hire her due to the lifting requirement, if the evidence shows that the lifting requirement disproportionately excludes pregnant applicants the employer would have to prove that the requirement is related to the position that was advertised and is consistent with its business necessities.
The PDA also requires an employer to treat an employee who is temporarily unable to perform the functions of her job because of a pregnancy-related condition in the same manner that other employees with a similar inability or ability to work are treated. For example, if an employer provides light-duty work to its employees who have some work restriction, then it must also provide light-duty opportunities to pregnant employees. In its guidance the EEOC explicitly rejects the position that the PDA does not require an employer to provide light-duty when it has a policy of limiting light-duty to employees injured on the job or to employees with disabilities under the ADA. An employer must allow a woman with physical limitations due to pregnancy to take leave on the same terms and conditions as it allows similarly situated individuals with physical limitations not caused by pregnancy to take leave. The guidance highlights the fact that courts have found that setting limitations on sick leave or prohibiting sick leave during the first year of employment can disparately impact pregnant employees. The PDA also requires that employees who take leave as a result of pregnancy, childbirth, or pregnancy-related conditions be able to accrue and maintain seniority and benefits in the same manner in which other employees who take leave for reasons other than pregnancy, childbirth or pregnancy-related conditions accrue and maintain their seniority and benefits.
Interaction of the PDA and the Americans with Disabilities Act
The 2008 amendments to the ADA expanded the definition of disability. While pregnancy is not a disability in and of itself, many pregnancy-related conditions are now considered disabilities under the ADA. The guidance clarifies that lactation is a pregnancy-related medical condition; therefore, treating a lactating employee less favorably than other employees may raise an inference of discrimination. Employers must also provide lactating employees with the same opportunities to address lactation-related needs as the employer would provide to other employees with similarly limiting medical conditions. For example, the guidance highlights that if an employer allows non-lactating employees an opportunity to change their schedules for routine medical appointments and to address other medical conditions, then it must also allow lactating employees the opportunity to adjust their schedules or provide sick leave to address lactation-related needs. The guidance also points out that in addition to protections under the PDA, Section 4207 of the Patient Protection and Affordable Care Act requires employers to provide reasonable break time for lactating mothers until the child’s first birthday, as well as a private place other than the bathroom for lactating mothers to express milk. If an employer has less than 50 employees, however, this requirement does not apply if it would create an undue hardship for the company.
As with any other ADA matter, employers must also provide reasonable accommodations to employees affected by pregnancy, childbirth or pregnancy-related conditions in a similar manner to which it would treat those affected by non-pregnancy related conditions. For example, an employee with a back condition with lifting restrictions that last several months would be considered a comparator for PDA/ADA purposes to a woman who has similar restrictions due to pregnancy. Other possible accommodations that pregnant employees might require that are similar to accommodations provided to individuals with non-pregnancy related disabilities include more frequent breaks, keeping a water bottle at a workstation (when this is not usually allowed), or using a stool to carry out job functions that are generally conducted standing up.
What Does All This Mean For Your Company?
Much of the EEOC’s new guidance consists of analysis and clarification of already long-standing EEOC policies. Thus, this information probably does not come as a surprise to most employers. However, the guidance provides a long list of suggestions for employers’ best practice, which can be helpful in informing employers’ operations and decision. These recommendations include:
- Develop strong policies based on the PDA and ADA and ensure there are multiple avenues for employee to submit complaints.
- Regularly train managers and supervisors on PDA and ADA requirements (as well as all anti-discrimination and anti-harassment law requirements), and ensure that all managers and supervisors consistently apply personnel policies to avoid inconsistent discipline.
- Quickly and effectively respond to complaints of discrimination or harassment with prompt investigation, adequate and appropriate corrective action, and implementation of preventative measures where necessary.
- Conduct prompt and consistent reviews of any requests for accommodations, and review and maintain clear and consistent light-duty policies.
- Focus on applicant qualifications in an objective manner with respect to hiring and focus on objective performance standards with respect to reviews and promotion.
- Develop and publish specific measurable standards for all positions. In general, maintaining transparency with respect to all policies and decisions, as well as expectations for employees, will help minimize exposure to claims.
If you or your company need assistance with developing and drafting employee handbooks or personnel policies, investigating and responding to complaints of discrimination or harassment, or defending your company’s interests against a claim of discrimination or harassment, Melick & Porter is here to help you.