U.S. Equal Employment Opportunity Commission Guidance on Pregnancy Discrimination: What Employers Need to Know

In July of 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its first comprehensive guidance on pregnancy discrimination and pregnancy-related disabilities since 1983 concerning the federal Pregnancy Discrimination Act (“PDA”). The PDA prohibits discrimination on the basis of past, current and intended pregnancy. With respect to intended or future pregnancy, employers may be liable for any adverse actions taken on the basis of (1) perceived or actual reproductive risks, (2) intention to become pregnant, (3) fertility treatments, and/or (4) the use of contraceptives. Additionally, the PDA prohibits discrimination against employees based on medical conditions related to pregnancy or childbirth, including lactation, breastfeeding and abortion. The EEOC’s guidance brings federal law more in line with California law.

One of the most discussed provisions in the EEOC guidance involves the EEOC’s position that employers must provide reasonable accommodations to pregnant employees or those with pregnancy-related conditions. While pregnancy does not automatically constitute a disability under the ADA, the guidance requires employers to treat pregnant employees who are temporarily unable to perform the functions of their job the same as it treats other employees with similar inabilities to perform their jobs, including those with disabilities. Thus, pregnant women with work restrictions must be offered light duty if the employer offers light duty, even if light duty is typically only offered to employees recovering from job-related injuries.

Another key highlight from the EEOC guidance concerns parental bonding leave. Parental bonding leave is generally offered so that new parents can bond with or care for a new child. The guidance requires that men and women must be offered bonding leave on equal terms. Thus, if female employees are offered five weeks of parental leave, male employees must also be offered five weeks of parental leave.

Employers should review their pregnancy, discrimination, leave and disability accommodation-related policies and practices to ensure compliance with the PDA and ADA’s requirements and EEOC guidance. Employers should also monitor their compensation practices and performance appraisal systems for patterns of potential discrimination based on pregnancy, childbirth or related medical condition.
As of January 1, 2015, California-mandated sexual harassment training must now include training and education on the prevention of bullying. (AB 2053) The training must be provided every two years for supervisory employees, or within six months of an employee assuming a supervisory position, for employers with 50 or more employees.