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Developments at the EEOC: New Pregnancy Discrimination Guidance

Developments at the EEOC:   On July 14, 2014, the EEOC issued its first comprehensive guidance since 1983 on pregnancy discrimination and the interaction of the Pregnancy Discrimination Act (PDA) with the Americans with Disabilities Act (ADA).   The Enforcement Guidance was accompanied by a Questions and Answers document.

The 51-page Enforcement Guidance sets out the PDA requirements prohibiting employer from discriminating against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as non-pregnant employees in their (in)ability to work. This Enforcement Guidance also explains how the ADA definition of disability applies to workers with preganancy-related impairments.

Although pregnancy itself is not a disability, pregnant workers and job applicants are not excluded from the protections of the ADA. The ADA Amendments Act  (ADAAA) makes it easier for pregnant workers with pregnancy-related impairments to demonstrate that they have a disability for which can receive reasonable accommodation. Among the issues covered in this Enforcement Guidance are:

•· An employer is prohibited from discriminating against an employee because that employee has stated that she intends to become pregnant.

•· An employer is required to provide the same benefits, such as leave and light duty assignments, for pregnancy-related medical conditions as it provides for other medical conditions.

•· Lactation is a pregnancy-related medical condition and less favorable treatment of a lactating employee could raise an inference of unlawful discrimination. A lactating employee must have the same freedom to address her lactation-related needs that her coworkers would have to address other similarly limiting medical conditions.

•· The ADA AA expanded definition of "disability" to include employees with conditions requiring temporary work related restrictions, also applies to work-related restrictions needed by pregnant women.

•· Pregnancy-based harassment, including unwelcome and offensive jokes or name calling, intimidation, offensive objects or pictures, is prohibited by the PDA. Similar to other types of harassment cases, the frequency and severity of the harassment, as well as whether the harassment unreasonably interfered with the employee's ability to perform her job, must be analyzed.

•· Disparate treatment of employees with caregiving responsibilities is prohibited when the employer treats a male caregiver different than a female caregiver or, for example, treats a Latina working mother differently based on stereotypes about working mothers and Latinos. Additionally, an employer violates the ADA if it treats an employee less favorably based on stereotypical assumptions about the employee's ability to perform job duties satisfactorily because the employee also cares for a child with a disability.

•· An employer may not require an employee to take leave during pregnancy nor may an employer exclude pregnant or fertile women from a job. While an employer may not force pregnant women to take leave, the employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others.

•· An employer must allow males as well as females to use parental leave on equal terms.

•· If an employer takes a prohibited action against a pregnant employee such as reassignment, it can be found liable for having regarded the employee as having a disability based on its belief that the employee had an impairment that was not both transitory and minor.

•· A pregnant employee may be entitled to a reasonable accommodation for limitations resulting from pregnancy-related conditions that constitute a disability.

If you believe that you have suffered possible pregnancy discrimination, and wish to discuss your rights, consider contacting Passman & Kaplan, P.C. to request an initial consultation.

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