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EEOC Updates Enforcement Guidance on Pregnancy Discrimination

07/15/2014 -The U.S. Equal Employment Opportunity Commission (EEOC) updated its enforcement�guidance on pregnancy discrimination and related issues Monday for the first time since 1983. The new guidance was released because the EEOC has seen a �significant number� of cases of alleged pregnancy discrimination involving U.S. employers, despite it being a prohibited form of sex discrimination.

�Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,� said EEOC Chair Jacqueline A. Berrien in apress release. �Despite much progress, we continued 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 emergency of more subtle discriminatory practices.�

Much of theguidance is focused on updating existing EEOC policy to address amendments that were made to the Americans with Disabilities Act (ADA) in 2008 for individuals who have pregnancy-related disabilities and the Pregnancy Discrimination Act (PDA). The new policies, under the PDA and ADA, only apply to employers with 15 or more employees.

One of the main components within the new guidance is the observance that the PDA covers not only a current pregnancy, but discrimination based on past pregnancy and a woman�s potential to become pregnant.

Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. �This is true even if the employer believes it is acting in the employee�s best interest,� the EEOC outlined.

The commission also outlines that employers cannot discriminate against an employee or applicant for past pregnancies, pregnancy-related medical conditions, or childbirth. Employers also cannot discriminate based on an �employee�s intention or potential to become pregnant,� the EEOC said.

�For example, an employer may not exclude a woman from a job involving processing certain chemicals out of concern that exposure would be harmful to a fetus if the employee became pregnant,� the commission explained. �Concerns about risks to a pregnant employee or her fetus will rarely, if ever, justify sex-specific job restrictions for a woman of childbearing capacity.�

The EEOC also held in its new guidance that employers cannot discriminate against an employee because of a medical condition related to pregnancy. Instead, employers must treat the employee the same as others who are similar in their ability to work but are not pregnant. An example the EEOC outlined was that under the PDA, lactation is a medical condition related to pregnancy, therefore an employer cannot discriminate against an employee based on her breastfeeding schedule.

The guidance also addresses issues related to leave and medical conditions related to pregnancy and discusses the PDA�s prohibition against requiring pregnant workers who are able to do their jobs to take leave.

The EEOC also addressed the circumstances under which employers may have to provide light duty for pregnant workers. Under the updated guidance, an employer is required to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant workers if it does so for other employees who are similar in their ability, or inability, to work.

An employer �may not limit a pregnant worker�s access to light duty based on the source of her impairment,� according to the EEOC, meaning employers cannot deny a worker light duty assignments based on a policy that �limits light duty to employees with on-the-job injuries.�

However, the EEOC does make an exception if an employer�s light duty-policy restricts the number of light-duty positions, or the duration of light-duty assignments. In this case, employers can apply those restrictions to pregnant workers �as long as it also applies the same restrictions to other workers similar in their ability or inability to work.�