Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back
Back

EEOC Refocuses on Pregnancy Discrimination

Written by: Charla Bizios Stevens

Published in the New Hampshire Business Review

Susan is a human resource manager for a telecommunications company which employs approximately 75 people throughout New Hampshire. Only five of these employees are women, but they are all under the age of 40. Some work in the office environment, while two are in the field performing physically strenuous duties. Susan is concerned about the possibility of one or more of her female employees becoming pregnant and needing time off or work duty accommodations. Where should Susan go to get information concerning her company’s duties and responsibilities?
The Equal Employment Opportunity Commission (" EEOC") on July 14, 2014 issued an Enforcement Guidance on Pregnancy Discrimination.  Susan should become familiar with this document which provides guidance regarding the Pregnancy Discrimination Act ("PDA") and the Americans With Disabilities Act ("ADA") as it applies to pregnant workers.  This is the first such guidance issued by the EEOC since 1983 and incorporates a number of changes in the law over the past 30 years.

EEOC Chair Jacqueline A. Berrien commented in a press release issued on the day the guidance was released that “Despite much progress, 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.” Berrien stressed her belief that the guidance will aid employers in complying with the PDA and ADA, and thus advance the EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two statutes.

The document is extensive and covers a number of issues. One of the primary areas of focus is likely to be the EEOC's position that the PDA requires employers to provide reasonable accommodation to employees who have work restrictions because of pregnancy, even if the employee does not qualify as disabled or is not regarded as disabled under the ADA. This is an area likely to be of interest to Susan, especially if one of her employees who performs physical work seeks a reduction in job responsibilities or so-called light-duty due to her pregnancy. Susan should also be mindful of the fact that the guidance prohibits employers from requiring workers to take pregnancy leave if they are physically able to do their job. The issue of accommodation is the subject of a case recently accepted by the United States Supreme Court, Young v. UPS.

Other highlights of the guidance include the following:

-The PDA prohibits discrimination not only based on current pregnancy, but also on past pregnancy, potential or intended  pregnancy, and medical conditions related to pregnancy or childbirth.

- Employment decisions based on a female employee's use of contraceptives may constitute unlawful discrimination based on gender and /or pregnancy. Employers can also violate Title VII by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes.

- There are various circumstances in which discrimination against a female employee who is lactating or breast feeding can implicate Title VII.

- Title VII, as amended by the PDA, requires employers to provide a work environment free of harassment based on pregnancy, childbirth, or related medical conditions. Liability can result from the conduct of a supervisor, coworker or non-employee, such as a customer or business partner over whom the employer has some control.

-Parental leave (which is distinct from medical leave associated with childbirth or recovering from childbirth) must be provided to similarly situated men and women on the same terms.

The guidance also contains the EEOC's recommended best practices for avoiding unlawful discrimination against pregnant workers and those otherwise covered by the PDA.  Susan should familiarize herself with these recommendations, some of the highlights of which follow:

-Develop, disseminate, and enforce a strong policy against discrimination on the basis of pregnancy, childbirth, and related medical conditions and train managers and employees regarding this policy;

-Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping; consistently apply these standards among candidates; 

-Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations;

-Evaluate leave policies to make certain that they do not disproportionately impact pregnant workers and note that an employee may qualify for leave as a reasonable accommodation; 

-Monitor compensation practices and performance appraisal system for patterns of potential discrimination.

For the most part, the guidance is consistent with existing law, but certain provisions, particularly those related to the use of contraceptives and providing accommodation to all pregnant employees regardless of disability status, are likely to stir up controversy and require future examination by the courts.

A review of the guidance and the Question and Answer section of the EEOC’s website, www.eeoc.gov, should provide Susan with a great deal of helpful information in developing policies and practices for her company, which are gender-neutral and nondiscriminatory.

Charla Bizios Stevens is a Director in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at [email protected] or followed on Twitter at @charlastevens. She also contributes regularly to www.employmentlawbusinessguide.com.

Click here for full article.

Integrity and trust

At McLane Middleton we establish and maintain long-standing relationships with our clients to help us better achieve their unique goals over time. This approach to building trust requires that our esteemed lawyers and professionals use their broad, in-depth knowledge and work together with integrity to ascertain sound resolutions to legal matters for their clients.

Strength in numbers

McLane Middleton is made up of more than 105 attorneys who represent a broad range of clients throughout the region, delivering customized solutions. As a firm we are recognized as having the highest legal ability rating. The firm is rated Preeminent by Martindale Hubbell and is recognized as one of the nation's leading law firms in Chambers USA. Our attorneys are distinguished leaders in their respective practice areas.

Meet Our People

Commitment and collaboration

McLane Middleton's versatile group of attorneys and paralegals become trusted authorities on each case through collaboration. We work with our clients to learn their individual needs first and foremost and, together, we develop comprehensive solutions to their specific legal matters. This approach helps us exceed our clients' expectations efficiently and effectively, client by client, case by case.

Practice Areas

A history of excellence

McLane Middleton was established in 1919 in New Hampshire, and has five offices across two states. However, deep historical roots don't allow you to become innate. Our firm is organized, technological, and knowledgeable. Our history means we are recognized. But our reputation is built on the highest quality of service and experience in very specific areas of law.

The Firm

Intelligence paired with action

Our team continuously seeks opportunities to enhance their professional development and put key learnings to action. The pursuit of further insight guides us to volunteer service opportunities, speaking engagements, and teaching roles. Our lawyers are sought after thought leaders across their industries, and recipients of leadership awards throughout the region.