The EEOC issued a lengthy and detailed enforcement guidance today that summarizes the changes over the past30 years in the laws that affect pregnant employees. Here are 10 key things the EEOC said employers need to know now to make sure they treat pregnant employees lawfully:
1. The fundamental rule of the Pregnancy Discrimination Act (PDA) remains the same: Pregnant employees are to be treated like other workers who are similar in their ability or inability to work.
2. “Same treatment” means that pregnant employees are entitled to light duty work if the employer provides light duty work to other employees – and this also means that policies that limit light duty work to on-the-job injuries are discriminatory. Essentially, the EEOC’s view is that a pregnant employee and a nonpregnant employee who have lifting restrictions must be treated the same under the PDA regardless of how the nonpregnant employee came to have the lifting restriction (football game, disability, on the job injury).
The courts are split on this issue, and the Supreme Court has granted cert in a light duty case to be heard next term. Until that decision comes out, employers may want to err on the side of caution and grant light duty to pregnant employees who need it. Note, however, that the EEOC recognizes that employers can apply light duty rules – such as limitations on the number of employees who can work light duty or limitations on the duration of light duty assignments – to pregnant employees as long as the same rules are applied the same way to nonpregnant employees.
3. “Same treatment” also means that pregnant employees with pregnancy-related conditions that meet the definition of “disability” under the Americans with Disabilities Act (ADA) must be given reasonable accommodations so they can continue to work, unless providing the accommodations would create an undue hardship for the employer. The ADA was amended to broaden the definition of “disability,” and employers are now providing accommodations to more employees. In practical terms, the change in the law means that employers who provide lifting assistance, a seat to sit on, or an extra unpaid break to employees with disabilities must provide similar accommodations to pregnant employees who have medical conditions that necessitate such accommodations.
4. Employers cannot force pregnant workers out on leave if they are able to do their jobs.
5. Lactation is a pregnancy-related medical condition for the purposes of the PDA, meaning that employers cannot discriminate against an employee because she is breastfeeding or needs breaks to express milk.
6. Fathers must be given the same amount of child care and child bonding leave as mothers. Employers can give birth mothers longer leave, whether paid or unpaid, as long as the difference is attributable to the time the mothers need for childbirth and recovery. So, giving birth mothers 12 weeks of paid leave and giving fathers six weeks of paid leave would pass muster under the EEOC’s analysis, but giving mothers 12 weeks of paid leave and fathers two weeks would not.
7. Employers cannot discriminate against women because they might become pregnant at some point in the future. Asking about family plans, refusing to hire women of child bearing age, and terminating women who are trying to become pregnant are all illegal.
8. Waiting until a woman gives birth to fire her for becoming pregnant is also a no-no. The PDA also covers recent past pregnancies.
9. Leave and attendance policies have to be applied consistently. If a pregnant employee takes leave in accordance with her employer’s sick leave policy, for example, she cannot be fired for doing so. Similarly, if a nonpregnant employee is not fired for being late or absent, a similarly situated pregnant employee who is similarly late or absent cannot be fired.
10. Employment decisions that are based on stereotypes and assumptions about pregnant employees (and employees who have caregiving responsibilities such as new mothers and fathers) are illegal. This means that an employer cannot refuse to promote a pregnant employee because the employer assumes she will not want the increased responsibilities of the new position due to her pregnancy or because it views her as less committed to her job. It also means an employer cannot refuse to hire a pregnant employee because she will need to take maternity leave.
The EEOC also provided best practices for employers. Here are a few: train managers and employees about their rights and responsibilities related to pregnancy and caregiving; focus on employees’ and applicants’ qualifications and performance, rather than allowing assumptions to rule; document and explain personnel decisions; protect against harassment; investigate complaints promptly; and have a process in place for determining requests for reasonable accommodation.
Workforce 21C provides training for HR, managers and supervisors about pregnancy and caregiver discrimination. Contact Cynthia Calvert at 410-645-1332 for more information, or visit our website at www.workforce21c.com.