The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance on how to interpret and apply the Pregnancy Discrimination Act (“PDA”). This guidance replaces the EEOC’s 1983 guidance and provides increased employer accommodation requirements for pregnant employees with pregnancy-related impairments.

The PDA, which covers all aspects of pregnancy (i.e., before, during and after pregnancy), requires that pregnant employees be treated the same as their non-pregnant coworkers who are similarly situated in their ability (or inability) to work. This includes affording pregnant employees who are unable to work due to medical reasons the same rights, leave privileges and other benefits as their non-pregnant but disabled counterparts.

In other words, employers must provide reasonable accommodations to employees who are subject to work restrictions because of pregnancy, just as employers would for employees who are disabled, even if the pregnancy-related impairments would otherwise not be considered a disability pursuant to the Americans with Disabilities Act (“ADA”).[1] A reasonable accommodation is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”[2]

While the Guidance makes it clear that pregnancy is not itself considered a disability, it goes on to state that pregnant workers may develop pregnancy-related impairments that are sufficient to constitute disabilities warranting reasonable accommodations pursuant to the ADA. These pregnancy-related impairments may be conditions that are both temporary and common in many otherwise healthy pregnancies, including, but not limited to, morning sickness, swelling of the feet or legs, pregnancy-related carpal tunnel syndrome, or pregnancy-related sciatica. The EEOC has taken the position, though, that an impairment’s cause is not relevant to the analysis of whether an impairment qualifies as a disability, and pregnancy-related impairments that impose working restrictions may be considered “substantially limiting” even though they are temporary conditions.

Additionally, the Guidance states that employers may not discriminate against an employee on the basis of pregnancy, childbirth or related medical conditions. This prohibition extends to current, past and potential or intended pregnancies. Adverse employment actions, including, but not limited to, refusing to hire, firing, failing to promote, or changes in health insurance benefits or work assignments, that are taken based on an individual’s current, past or potential pregnancy status or related medical conditions, without regard to the individual’s ability to perform the duties of the job, may, accordingly, be actionable as a violation of the PDA.

This does not mean, however, that an employer can never deny employment to an applicant who is pregnant or cannot discipline a pregnant employee who has engaged in misconduct. The main takeaway is that a current, previous or potential pregnancy, and any related actual or potential medical conditions, cannot be the reason for an employer’s adverse employment action. If the employer or its designee who is responsible for taking the adverse employment action does not have express or perceived knowledge of the individual’s pregnancy (e.g., is never told about the pregnancy and cannot visually determine that the individual is pregnant), it is unlikely that there will be a finding of intentional pregnancy discrimination.

The PDA also requires that an employer provide a workplace that is free of harassment based on pregnancy, childbirth or related medical conditions. Notably, an employer’s liability is extended to the conduct of anyone, including non-employees and customers, over whom the employer has some degree of control. Some examples of pregnancy-based harassment include, among other things, offensive or unwelcome jokes, name-calling, ridicule, offensive objects or pictures, and interference with work performance based on remarks or other actions that are motivated by an employee’s pregnancy, childbirth or related medical conditions.

The courts analyze harassment on a case-by-case basis and consider the totality of the circumstances. According to the EEOC, the more severe the harassment, the less pervasive it needs to be (and vice versa) in order to be actionable. Thus, one particularly severe instance of harassment may result in a viable harassment claim, as well as several less severe instances that are directed against a particular individual. Overall, there is no “magic formula” to determine whether one or several instances of harassment will result in a successful harassment claim, so it is best to treat each instance seriously and to take steps to prevent and efficiently address this and all other forms of workplace harassment.

In summary, based on the information above and the extensive guidance provided by the EEOC, we recommend the following best practices:

• During the hiring process, do not inquire about an individual’s pregnancy status or intention to become pregnant.

• Do not make employment decisions, such as whether to hire or fire an individual, on the basis of pregnancy, medical conditions related to the individual’s pregnancy, or potential health insurance issues because of a pregnancy-related medical condition.

• When you become aware of an employee’s pregnancy, do not make changes to her work assignments, promotions, bonuses; etc., merely because of her pregnancy. Any unrequested job restrictions based on an employee’s pregnancy, even if well-intentioned, may be perceived to violate the PDA.

• Pregnant employees requesting reasonable accommodations should receive accommodations similar to those received by non-pregnant employees with temporarily disabling conditions (e., similarly situated non-pregnant employees). For example, if you provide light duty to an employee who breaks an ankle playing basketball while off-duty, you must also provide light duty to a pregnant employee whose pregnancy-related medical condition requires this accommodation.

• Except in extremely limited circumstances that result in an employee being unable to perform her job despite receiving reasonable accommodations, an employer may not require a pregnant employee to go on leave until her child is born or for a specific period of time thereafter.

• Employer-provided health insurance should include coverage of particular treatments or medications that apply to only one gender (g., surgical impregnation, prescription contraceptives; etc.).[3]

• Treat lactating and breastfeeding employees the same as other employees with medical conditions that require periodic breaks throughout the workday. Keep in mind that other laws, including a provision of the Affordable Care Act and New York Labor Law, require employers to provide reasonable break time and a private place for lactating and breastfeeding employees to express breast milk.

• Finally, you should review your employee handbook and policies to ensure that they do not inadvertently discriminate against pregnant employees or employees who may potentially become pregnant. Policies that might disparately impact pregnant employees, such as light duty restrictions,[4] must be job-related and consistent with business necessity. Additionally, policies concerning medical leave and the benefits that may be accrued while an employee is on leave, such as seniority or service credit, must be applied equally to pregnant-related medical leave as they are applied to other types of medical leave.

If you have any questions regarding the EEOC’s guidance on the PDA or would like us to review your employee handbook and policies to ensure that they comply with the law, please contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014

[1] For example, a non-pregnant person who has a temporary limitation such as prolonged stomach/nausea issues would likely not be considered to be “disabled” or to have a condition that “substantially affects a major life activity” pursuant to the ADA, whereas a pregnant employee with morning sickness may be considered to have a pregnancy-related impairment that qualifies as a disability.

[2] EEOC Americans with Disabilities Act Questions and Answers, available at http://www.ada.gov/q&aeng02.htm.

[3] The EEOC has taken the position that an otherwise comprehensive health insurance plan must include prescription contraceptives if it covers other prescription medications, and that failing to do so would be illegal discrimination on the basis of sex because (for now) prescription contraceptives are only available to women. It remains to be seen whether the EEOC will modify this position in light of the U.S. Supreme Court’s Hobby Lobby decision, which held that the Affordable Care Act’s contraceptive coverage mandate violated the Religious Freedom Restoration Act as applied to private, closely-held for-profit corporations whose owners had religious objections to providing certain types of contraceptives.

[4] The Guidance specifically states that, “[t]he PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.” Thus, as a general rule, light duty restrictions must apply equally to pregnant and non-pregnant employees. Additionally, the EEOC has taken the position that policies that restrict light duty to injuries incurred on-the-job will likely be deemed to discriminate against pregnant employees. This position is contrary to many courts’ interpretation of the law.