On July 14, 2014, The Equal Employment Opportunity Commission released guidelines for what is and what is not pregnancy discrimination based on its interpretation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the ADA Amendments Act, and the Pregnancy Discrimination Act. The sheer number of statutes that can be applied to this situation evinces how complicated this steadily increasing area of law truly is.
It is important to note that EEOC guidelines are not law and courts do not have to follow these guidelines. However, employers looking to avoid a suit do best to follow these rules, and courts do take the guidelines into consideration when making decisions.
The guidelines protect a variety of issues relating to pregnancy, including current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy and/or childbirth.
Protection under the ADA for pregnancy arises for impairments related to the pregnancy, not the pregnancy itself. Because pregnancy is not on its own an impairment under the ADA, it can never be a disability. However, many conditions, such as preeclampsia, can be considered disabilities under the ADA if they substantially limit major life activities such as sitting, standing, or walking. In addition, many of these conditions affect major bodily systems, including the cardiovascular and circulatory systems. The ADA also protects women who have a history of these impairments.
Title VII, combined with the amendments of the Pregnancy Discrimination Act, protects a wide variety of situations that women may find themselves in as it relates to employment. It not only protects current pregnancies, but also past and possible future pregnancies. This means that women who have been pregnant in the past cannot be terminated because of that, such as where a woman is terminated a day after giving birth. The protection of future pregnancies includes protection against discrimination based on reproductive risk. A company whose employees are in situations that could endanger the life of the fetus or the employee’s ability to reproduce cannot have a policy against hiring females if they allow men who have a possibility of reproduction in the future to occupy these positions. It boils down to it being the responsibility and the personal choice of a parent to weigh the risks and benefits of working in that position while being able to reproduce. Title VII also prohibits discrimination against women who intend to become pregnant, or who are using fertility treatments to become pregnant.
Title VII protects against discrimination based on medical conditions related to the pregnancy. One of the most notable examples is breastfeeding. If an employer allows another employee with an impairment to use sick time to go to routine doctor’s visits or allows other time to be taken off for similar situations, the employer must allow women to take sick leave during the day to breastfeed.
Abortion is mentioned briefly in the guidelines- a woman cannot be discriminated against either for having or not having an abortion. The EEOC is clear that Title VII does not require an employer who covers health insurance for its employees to cover abortions except where the mother’s life would be endangered if the pregnancy was carried to term, nor can they deny coverage for complications arising from an abortion.
According to the EEOC, Title VII also protects contraceptive use, because woman’s use of contraceptives to control her ability to become pregnant relates to potential pregnancies, and therefore, an employer cannot discriminate against a woman for using contraceptives. Interestingly in light the the Supreme Court’s decision in the Hobby Lobby case, the revised guidelines state that it is discrimination under Title VII for an employer who offers comprehensive health coverage to not cover contraceptives. Since prescription contraceptives can only be used by women, an employer that excludes these from its insurance coverage is an example a facially discriminating against women, especially if the health plan covers other preventative medicine, including vaccinations and physical examinations. It will be interesting to see what weight the courts will give this section of the guideline in the inevitable lawsuits based in sex discrimination because of failure to provide birth control in the company health plan.
This article was first published on the Law.com Network on July 18, 2014.