The PDA amended
Title VII so that “discrimination on the basis of sex” would include “pregnancy,
childbirth or related medical conditions.” In particular, the following provision was
incorporated into Title VII:
(k) The terms 'because of sex' or 'on the basis of sex' include, but are
not limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or inability to work, and
nothing in section 703(h) of this title shall be interpreted to permit
otherwise. This subsection shall not require an employer to pay for health
insurance benefits for abortion, except where the life of the mother would be
endangered if the fetus were carried to term, or except where medical
complications have arisen from an abortion: Provided, That nothing herein shall
preclude an employer from providing abortion benefits or otherwise affect
bargaining agreements in regard to abortion.
This PDA has been interpreted to include discrimination against women based
on their desire or intention to eventually become pregnant or because they are
capable of becoming pregnant. This can occur,
for instance, when an employer engages in paternalistic decisionmaking and
decides that certain jobs or duties are too dangerous for pregnant employees or
women in general. The EEOC considers “related
medical conditions” to include gestational diabetes, preeclampsia, and
lactation.
Reasonable
Accommodations. The EEOC
concedes, as it must, that the ADA provides that pregnancy is not a
disability. However, “[p]regnancy-related impairments are disabilities if they
substantially limit one or more major life activities or substantially limited
major life activities in the past.” More importantly, in a footnote, the EEOC
observed that:
The expanded definition of "disability" under the ADA also may
affect the PDA requirement that pregnant workers with limitations be treated
the same as employees who are not pregnant but who are similar in their ability
or inability to work by expanding the number of non-pregnant employees who
could serve as comparators where disparate treatment under the PDA is alleged.
In other words, if the ADA requires
an employer to provide a reasonable accommodation to a disabled employee, it
must also provide the same accommodation to a pregnant employee in order to
show uniform treatment. Therefore, the
EEOC expanded upon this argument to announce the following:
Title VII requires that individuals affected by pregnancy, childbirth, or
related medical conditions be treated the same for all employment-related
purposes as other persons not so affected but similar in their ability or
inability to work. Thus, an employer is obligated to treat a pregnant employee temporarily unable to perform the functions
of her job the same as it treats other employees similarly unable to perform
their jobs, whether by providing modified tasks, alternative assignments,
leave, or fringe benefits.
An employer may not refuse to treat a pregnant worker the same as other
employees who are similar in their ability or inability to work by relying on a
policy that makes distinctions based on the source of an employee's limitations
(e.g., a policy of providing light duty only to workers injured on the job).
However, an employer may treat a pregnant employee the same as other employees
who are similar in their ability or inability to work with respect to other
prerequisites for obtaining the benefit that do not relate to the cause of an employee's
limitation. For example, a pregnant worker who needs changes in her duties or
schedule would be responsible for conveying the request to her supervisor and
for providing reasonable documentation of her limitations if this is what the
employer requires of employees who seek workplace changes for reasons other
than pregnancy. Similarly, if a pregnant
worker requests a change that the employer is providing as a reasonable
accommodation to a co-worker with a disability, the employer may evaluate the pregnant
employee's request in light of whether the change would constitute an
"undue hardship," since this would amount to treating the pregnant
employee the same as an employee with a disability whose accommodation request
would also be subject to the defense of undue hardship. (italics added for emphasis).
Pregnant workers can also be “regarded”
as disabled under the ADAA or have a history of a disability.
Lactation. As mentioned, the EEOC considers lactation to be a
related medical condition to pregnancy. The
EEOC’s FAQ notes that “if an employer
allows employees to change their schedules or use sick leave for routine doctor
appointments and to address non-incapacitating medical conditions, then it must
allow female employees to change their schedules or use sick leave for
lactation-related needs.” Moreover,
[i]n addition to being protected under the PDA, female hourly employees who
are breastfeeding have rights under other laws, including a provision of the
Patient Protection and Affordable Care Act that amended the Fair Labor Standards
Act to require employers to provide reasonable break time and a private place
for breastfeeding employees to express milk.
Light Duty. Many employers provide light
duty to employees injured on the job who are receiving workers
compensation. As a Sixth Circuit panel ruled in
December, the EEOC now contends that these employers must similarly provide
light duty to pregnant employees who need and request it if the employer:
provides light duty for employees who are not pregnant but who are similar
in their ability or inability to work. An employer may not treat pregnant
workers differently from employees who are similar in their ability or
inability to work based on the cause of their limitations. For example, an
employer may not deny light duty to a pregnant employee based on a policy that
limits light duty to employees with on-the-job injuries.
Contraception Coverage. The EEOC also
considers the PDA to prohibit “discrimination
related to a woman's use of contraceptives. It rejects
in footnote 38 of the Guidance the argument (adopted by some courts) that
contraception coverage is not an issue under the PDA because it arises before pregnancy because contraception
applies to a “potential pregnancy.” Therefore,
“an employer could not discharge a female employee from her job because she
uses contraceptives.”
Although it concedes that there may be religious exemptions under the Supreme
Court’s recent Hobby Lobby decision, the EEOC views the exclusion of
contraception coverage as sex discrimination under the PDA:
Employers can violate the PDA by
providing health insurance that excludes coverage of prescription
contraceptives, whether the contraceptives are prescribed for birth control or
for medical purposes. To comply with Title VII, an employer's health insurance
plan must cover prescription contraceptives on the same basis as prescription
drugs, devices, and services that are used to prevent the occurrence of medical
conditions other than pregnancy. For example, if an employer's health insurance
plan covers preventive care for medical conditions other than pregnancy, such
as vaccinations, physical examinations, or prescription drugs to prevent high
blood pressure or to lower cholesterol levels, then prescription contraceptives
also must be covered.
Maternity Leave. The EEOC also argues that denying or limiting
the length of maternity leave – even under a uniformly applied policy – can
create an illegal discriminatory impact on pregnant women:
A policy that restricts leave might disproportionately impact pregnant
women. For example, a 10-day ceiling on sick leave and a policy denying sick
leave during the first year of employment have been found to disparately impact
pregnant women.
If a claimant establishes that such a policy has a disparate impact, an
employer must prove that the policy is job related and consistent with business
necessity. An employer must have supporting evidence to justify its policy.
Business necessity cannot be established by a mere articulation of reasons.
Thus, one court refused to find business necessity where the employer argued
that it provided no leave to employees who had worked less than one year
because it had a high turnover rate and wanted to allow leave only to those who
had demonstrated "staying power," but provided no supporting
evidence. The court also found that an alternative policy denying leave for a
shorter time period might have served the same business goal, since the evidence
showed that most of the first year turnover occurred during the first three
months of employment.
Parental Leave. While an employer need only provide maternity
leave for as long as the mother is physically restricted, if it provides
additional “bonding” leave to the mother, the EEOC says that it must similarly
provide such child-care leave to the father under the PDA: “If, for
example, an employer extends leave to new mothers beyond the period of
recuperation from childbirth, it cannot lawfully refuse to provide an
equivalent amount of leave to new fathers for the same purpose.”
NOTICE: This summary is designed merely to inform and
alert you of recent legal developments. It does not constitute legal advice and
does not apply to any particular situation because different facts could lead
to different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
