When you have a pregnant employee, it is important to understand the laws that provide protections relating to that employee’s employment.
The federal Pregnancy Discrimination Act (PDA) clarifies that discrimination based on pregnancy, childbirth or related medical conditions is a prohibited form of sex discrimination. The law requires employers to treat women affected by pregnancy or related medical conditions the same as non-pregnant applicants or employees who are similar in their ability or inability to work.
Another federal law, Title I of the Americans with Disabilities Act (ADA), prohibits employment discrimination on the basis of disability and requires covered employers to provide reasonable accommodations for the known limitations of otherwise qualified employees and applicants. Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities or if they have substantially limited major life activities in the past.
Both the PDA and the ADA apply to private and state- and local-government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs.
Extent of PDA Coverage
The U.S. Equal Employment Opportunity Commission (EEOC) enforces both the PDA and the ADA. According to the EEOC’s enforcement guidance, the PDA prohibits discrimination based not only on an employee’s current pregnancy, but also on past pregnancies and an employee’s potential or intention to become pregnant in the future. In addition, the EEOC reinforced that the PDA covers all aspects of employment, including firing, hiring, promotions, health benefits and treatment, in comparison with non-pregnant persons in their similar ability or inability to work.
Medical Conditions Related to Pregnancy or Childbirth
The EEOC points out that the PDA prohibits employers from discriminating against women with medical conditions related to pregnancy or childbirth, and requires employers to treat them the same as other employees who are similar in their ability to work but are not affected by pregnancy, childbirth or related medical conditions.
The EEOC’s guidance states that lactation and breast-feeding are pregnancy-related medical conditions protected under the PDA. Accordingly, employers must ensure that employees have the same freedom to address lactation-related needs as other employees have to address other similarly limiting medical conditions.
For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.
Light Duty Policies
The EEOC’s guidelines also address light duty requirements for employers. According to the PDA, employers are required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees who are similar in their ability or inability to work.
The EEOC’s guidance reflects the Supreme Court’s decision in Young v. UPS, stating that women may be able to prove unlawful pregnancy discrimination if an employer has a policy of accommodating a large percentage of non-pregnant workers while denying accommodations to a large percentage of pregnant employees. In addition, even if the employer’s policies are not intended to discriminate against pregnant employees, the policies may still violate the PDA if they impose significant burdens on pregnant employees without a sufficiently strong justification.
The EEOC makes it clear that employers may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes that it is acting in the employee’s best interest.
Under the PDA, employers must allow women with physical limitation resulting from pregnancy to have leave on the same terms and conditions as others who are similar in their ability to work. For example, an employer:
- May not fire a pregnant employee for being absent from work if her absence is covered by the employer’s sick leave policy;
- May not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirement on employees who seek leave for other medical conditions;
- May not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
- Must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability to work do so.
However, the PDA does not require employers to treat pregnancy-related absences more favorably than absences for other medical conditions.
Equal Parental Leave
The EEOC’s guidance also impacts fathers in the workplace. While employers may restrict leave related to pregnancy, childbirth or related medical conditions to the women affected by those conditions, they cannot discriminate between men and women when it comes to parental leave (leave for the purposes of bonding with or providing care for a newborn). Parental leave must be provided to similarly situated men and women on the same terms. For example, if an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot legally fail to provide an equivalent amount of leave to new fathers for the same purpose.
The ADA and Pregnancy
In its guidance, the EEOC reaffirmed its position on the ADA’s relationship with pregnancy. Although pregnancy itself is not considered a disability under the ADA, pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the law. The EEOC points out that changes to the term “disability” resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for individuals with pregnancy-related impairments to demonstrate that they have a disability and are thus entitled to the ADA’s protection. Conditions only need to substantially limit a major life activity, and impairments of a short duration can qualify as a disability. Examples of pregnancy-related impairments that may qualify a pregnant individual as disabled under the ADA include, but are not limited to, carpal tunnel syndrome, sciatica, mandatory bed rest, depression, nausea, painful swelling and conditions that limit walking.
Accordingly, employers may not discriminate against an employee whose pregnancy-related impairment is a disability under the ADA, and they must provide employees with reasonable accommodations if needed because of a pregnancy-related disability, unless the accommodation would result in significant difficulty or expense. Examples of reasonable accommodations include:
- Redistributing or altering marginal or nonessential job functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
- Modifying workplace policies to accommodate a worker’s pregnancy, including allowing more frequent breaks or allowing an employee to keep a water bottle at her workstation even if the employer generally prohibits keeping drinks at workstations;
- Granting leave in addition to what an employer would normally provide under a sick leave policy;
- Temporarily reassigning pregnant employees to light-duty positions;
- Purchasing or modifying workplace equipment, such as a stool for a pregnant employee who needs to sit while working, to accommodate pregnant workers; and
- Modifying an employee’s work schedule to accommodate conditions related to pregnancy.
Included in the EEOC’s guidance are suggestions for best practices that employers may adopt to reduce their chances of pregnancy-related discrimination violations under the PDA and ADA. Employers should consult the guidance for advice on best practices related to hiring, promotions, employment decisions, employer policies, leave and other fringe benefits, terms and conditions of employment, and reasonable accommodations.
If you have compliance questions related to pregnancy discrimination or any other employment laws, contact the People Strategy team at Helpside at firstname.lastname@example.org.