On July 14, 2014 the U.S. Equal Employment Opportunity Commission published a document entitled: “Enforcement Guidance: Pregnancy Discrimination and Related Issues.” This document supersedes an EEOC Compliance Manual dating back to 1991. It provides guidance regarding the federal Pregnancy Discrimination Act (PDA) enacted in 1978 and the Americans with Disabilities Act (ADA) as they apply to pregnant workers.

There are two fundamental requirements of the PDA:

  1. An Employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions, and
  2. Women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

The PDA prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy and medical conditions related to pregnancy or childbirth. Stereotypes and assumptions about job capabilities and commitment must be avoided and employers must not inquire about family status or reproductive plans.

The guidance document contains many examples to demonstrate circumstances in which discrimination may be found. For example, since lactation is a pregnancy-related medical condition, an employee must have the same freedom to address lactation needs that she and her coworkers would have to address similarly limiting medical conditions. A policy that permits employees to use break time for personal reasons but not for lactation needs would be unlawfully discriminatory.

Employers must consider whether their policies and practices have the effect of disparate treatment of pregnant employees. A work environment free of harassment based on pregnancy, childbirth or related medical conditions must be provided, and parental leave (as distinguished from leave related to pregnancy, childbirth or related medical conditions) must be provided to men and women on equal terms.

The new enforcement guidance details how the Americans with Disabilities Act (ADA) may be relevant in the context of pregnancy. Disability discrimination occurs when a covered employer treats an applicant or employee less favorably due to a disability, a history of a disability, or a perceived physical or mental impairment that substantially limits one or more major life functions.   The impairment need not last for any particular length of time to be considered substantially limiting. Thus, pregnant workers may have pregnancy-related impairments that qualify as disabilities under the ADA , such that reasonable accommodations must be considered.

The guidance document concludes with a section on best practices, including proactive measures to avoid complaints of unlawful discrimination.