By: Rhonda Armstrong 7/22/14
Yes, this is another article about dealing with pregnancy in the workplace! I’ve previously set forth my recommendations on this topic in two prior articles – New Mom’s Back at Work (6/12/14) and The Mother’s Day Edition (5/8/14). Not to overkill the issue, but the EEOC just released new guidance on July 14, 2014, including an Enforcement Guidance, a Fact Sheet, and a related Q & A – all of which can be downloaded from the EEOC website (www.eeoc.gov).
In short, the new guidance does not differ from what I had previously outlined as employer obligations, and in fact re-emphasizes many points I made, including:
- ADA Accommodation Implications – In my prior articles, I warned employers to be careful in denying accommodations to pregnant workers because it could give rise to failure to accommodate claims under the Americans with Disabilities Act (ADA). While courts have routinely ruled pregnancy alone is not a disability (which the EEOC does not dispute, even now), courts routinely find pregnancy complications protected by the ADA. The EEOC stressed that, with the passage of the ADA Amendments Act (making it easier for employees to prove disability and extending to temporary conditions), it will also be much “easier” for pregnant workers to demonstrate ADA protections including relative to conditions which may only be temporary. The EEOC cited the following as examples:
- Pregnancy-related anemia;
- Pregnancy-related sciatica (back-aches)
- Nausea that causes severe dehydration (morning sickness);
- Abnormal heath rhythms;
- Leg swelling.
I don’t know about you, but Nos. 2, 3, and 5 seem a normal part of most pregnancies at some point along the way (at least for my two pregnancies). The EEOC provided several examples of what might be appropriate accommodations, including:
o Redistributing marginal (not essential) job functions or altering how job functions are performed;
o Modifying policies (e.g., a no water at workstation policy or lifting requirement);
o Purchasing or modifying equipment or devices (e.g., a providing a stool);
o Modified work schedules or granting leaves of absence; or
o Providing a temporary assignment to light duty position.
With respect to leaves of absences and light-duty assignments, the EEOC cautioned that denying leave or light-duty to pregnant employees with disabilities that are provided for persons with similar ability/inability with other disabilities could be unlawful. So, for example, if you let a person with only one leg (an obvious disability under the ADA) sit at a cash register, failure to let a pregnant employee do the same could be pregnancy discrimination.
- Breastfeeding Accommodation – In my Mom’s Back at Work article, I cautioned employers about treating breastfeeding employees differently or in refusing to provide necessary break-time. The EEOC’s new guidance confirms this point (“[a]n employee must have the same freedom to address…lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.”). While the EEOC did not outright require break-time, the implication is certainly that such practices will be closely scrutinized.
- Non-Pregnancy as Bona Fide Occupational Qualification (BFOQ) – In my prior article, I warned that juries and courts rarely find it lawful to prohibit pregnancy for safety or other reasons. The EEOC confirmed that this stating the BFOQ is an “extremely narrow exception” that employers will “rarely” meet.
The EEOC provided many examples of what constitutes discriminatory practices in violation of Title VII, the Pregnancy Discrimination Act, or the ADA. Some additional examples beyond those I mentioned in my prior articles include: (1) Penalizing an employee for taking time off for fertility treatments; or (2) Failing to hire a pregnant applicant who could not meet a 50-pound lifting requirement when the lifting requirement is not job-related and consistent with business necessity.
Lastly, the EEOC provided employers with a laundry-list of “best practices.” These include practices that most prudent employers should already have in place, such as: having a strong policy prohibiting discrimination, harassment, and retaliation; training managers regarding Title VII, the PDA, FMLA, etc.; reviewing policies to ensure no negative impact on protected groups of employees; investigating complaints and taking prompt corrective measures, as appropriate.
Some of the suggestions that may be new “take-aways” for employers include:
- Extending non-discrimination, harassment, and retaliation policies to “pregnancy, childbirth, and related conditions” and “breastfeeding.”
- Implementing written reasonable accommodation procedures and stating explicitly that they may be available to persons with temporary impairments, including those relating to pregnancy.
- Training managers to understand their obligations with respect to pregnant employees.
- Avoid assuming that pregnancy is not a disability under the ADA.
In closing, the EEOC’s guidance sends a strong message that it will closely scrutinize practices that treat pregnant employees differently or fail to accommodate the impairments associated with pregnancy. If you are in a position that you believe is a close question, it is better to be safe than sorry and give us a call.