By Anne-Marie L. Storey, Esq.
On July 14, the EEOC issued an Enforcement Guidance addressing pregnancy discrimination under the Pregnancy Discrimination Act and the ADA as they apply to pregnant employees.
The Pregnancy Discrimination Act extends Title VII to prohibit an employer from discriminating on the basis of pregnancy, childbirth or related medical conditions and requires that women “affected by” pregnancy, childbirth or related medical conditions be treated the same as other employees “not so affected but similar in their ability or inability to work”. Since it is an extension of Title VII, it would only apply to employers with 15 or more employees (however, all Maine employers are also covered by the Maine Human Rights Act, which prohibits discrimination on the basis of disability, including pregnancy and related conditions). In addition, issues related to pregnancy may be the subject of the ADA/MHRA as well.
Among the many issues covered in the Guidance is the topic of light duty for pregnant employees. The Guidance emphasizes that a pregnant employee can establish a violation of the PDA by showing that she was denied light duty or other accommodation granted to other employees who were similar in their inability to work. As an example, the Guidance poses the following:
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.
The Guidance confirms, however, that the PDA only requires benefits for pregnant employees on the same terms that it offers benefits to other workers similar in their ability or inability to work. So, if a neutral light duty policy has restrictions on its availability, such as the duration of light duty assignments, the employer may lawfully apply those restrictions to pregnant workers, as long as it also applies the same restrictions to other workers similar in their ability or inability to work.
In another section, the Guidance confirms that an employer cannot require a pregnant employee to take leave just because she is pregnant, as long as she is able to perform her job. Forcing leave in that situation would constitute a violation of Title VII even if the employer believes it is acting in the employee’s best interest. As an aside, that would also include making unsolicited or unwanted changes to an employee’s job just because she is pregnant. For instance, an employer should not assume that an employee who works on an assembly line in a standing position needs to sit just because she is pregnant if she has not asked for such an accommodation.
The Guidance is well worth a read by all employers. It can be found at www.eeoc.gov. Employers should also remember that the FMLA (state and federal) will also come into play in the analysis related to leave for pregnancy and related issues.
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