EEOC Updates Guidance on Pregnancy Discrimination

For the first time since 1983, the U.S. Equal Employment Opportunity Commission this week issued new guidelines on the subject of pregnancy discrimination in employment. In addition to addressing the protections for employees under the Pregnancy Discrimination Act, the guidance also addresses the rights of pregnant employees under the federal disability discrimination law, the Americans with Disabilities Act. Assuming they are accepted by the courts, the new guidelines promise increased protection against employment discrimination for Cleveland-area employees.

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As a general rule under the federal Pregnancy Discrimination Act, employers may not discriminate against an employee on the basis of “pregnancy, childbirth, or related medical conditions.” To the contrary, employers in Ohio and elsewhere must treat pregnant employees the same as other employees who are similar in their ability or inability to work. The disability discrimination laws might also offer to protection to pregnant employees, if there are pregnancy-related complications or if it is a high-risk pregnancy.

The new EEOC guidance addresses various specific circumstances that arise regarding the treatment of pregnant employees in the workplace. Among other topics, it notes that not only are currently pregnant employees protected from discrimination, employees are also protected from discrimination because of a past pregnancy or even the potential to become pregnant in the future. It also clarifies that employers may not discriminate against an employee because she is breastfeeding. As an aside, it is important to note that many working mothers also have rights regarding lactation under the Fair Labor Standards Act, thanks to the Affordable Care Act (also known as “Obamacare”).

The guidance also covers two other pregnancy discrimination issues we commonly see: light duty and leave. In keeping with the general rule I mentioned above, employers are required to give pregnant employees light duty or leave when needed, if they give such accommodations to non-pregnant employees who are similar in their ability to work. For instance, if the employer would give leave to an employee undergoing heart surgery, or light duty for an employee with a back problem, it would have to allow those accommodations for a pregnant employee who needed them as well.

In issuing the new guidance, EEOC Chair Jacqueline A. Berrian said “we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.” The guidance represents the EEOC’s efforts to step up enforcement in this area. While we do not know how courts will interpret the guidance, at least for now, it offers the promise of increased protection for employees against pregnancy discrimination in Ohio workplaces.