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Pregnant employees require accommodation

New federal guidance expands overlooked law—and concept of “pregnancy-related”

Pregnant employees require accommodation

The Pregnancy Discrimination Act (PDA) was passed in 1978 to amend Title VII of the Civil Rights Act of 1964 to add pregnancy discrimination to the definition of prohibited discrimination on the basis of sex.

That was long before the passage of the Americans with Disabilities Act (ADA) in 1991, or the ADA Amendments Act (ADAA) in 2008, the Family and Medical Leave Act in 1993, or the various other laws discussed in the Equal Employment Opportunity Commission’s (EEOC) recently issued “Guidance On Pregnancy Discrimination And Related Issues.” 

New duty to accommodate

The main point of the EEOC’s guidance: Pregnant women—even those with normal “uncomplicated” pregnancies—are entitled to a reasonable accommodation in the workplace.

By the way, the guidance relies on an expansive definition of “pregnancy and pregnancy-related.” It includes conception, or the decision not to conceive, termination of pregnancy, childbirth, and post-birth, including lactation.

The guidance recognizes that pregnancy itself is not a covered disability under the ADA. Pregnancy-related medical conditions—such as pre-eclampsia or gestational diabetes—are, given the expanded definition of disability in the ADA amendments.

However, the new guidance takes the rationale that the PDA requires pregnant employees to be treated the same as non-pregnant employees who are similar in their ability or inability to work. So, the guidance states that an employer who offers reasonable accommodations to employees with disabilities (as required by the disabilities act) must offer the same accommodations to pregnant employees.

That requirement applies regardless of whether the pregnant employee’s ability or inability to work is caused by the natural symptoms of pregnancy, such as balance issues, change in body size, or morning sickness.

For example, if the bank offers light duty to an employee with a weight-lifting limitation due to a back injury, it must offer light duty to a pregnant employee with a similar limitation.

While the EEOC Guidance does not have the force of law, it will be persuasive to those courts which have not previously viewed the PDA as including an obligation on employers to accommodate.

How guidance pulls in other laws

Although the guidance focuses on the PDA’s interaction with the ADA, it also reviews other laws that impinge on pregnancy and pregnancy-related issues, such as the Affordable Care Act (ACA).

Assuming the employer does not fall under the Hobby Lobby religious exception, the EEOC's position is that failure to provide contraceptive coverage is not only a violation of the ACA but also a violation of the PDA.

Another provision of the ACA requires reasonable break time for nursing mothers (the Nursing Mothers’ Act). However, if the employer violated this provision, the nursing mother had no right to sue. By taking the position that a violation of the Nursing Mothers’ Act is also a violation of the PDA, EEOC creates a legal right of action for damages, including punitive damages.

Practice pointers for your bank

Since the passage of the PDA, many states have enacted their own laws extending employment protections to pregnant women and new mothers. Thoughtful employers, especially banks dependent on a largely female workforce, already have policies in place to accommodate pregnancy and pregnancy-related issues. In many ways, the EEOC merely brings the PDA up-to-date with state law, current employment policies, and other federal laws such as the ADA.

The new guidance provides an opportunity to review best practices and to do some refresher management training. Some pointers:

Get the policy right. Make sure the bank’s EEO policy addresses unlawful discrimination based on pregnancy, childbirth, and related medical conditions, and offers multiple avenues of complaint.

Train managers regularly about their responsibilities related to pregnancy, childbirth, and related medical conditions. Review relevant federal, state, and local laws and regulations, as well as relevant bank policies.

Take pregnancy discrimination complaints seriously. Investigate complaints promptly and thoroughly. Take corrective action and implement corrective and preventive measures as necessary. Protect applicants and employees from retaliation.

Stick to job qualifications. In hiring, promoting, or assigning jobs, focus on the applicant's or employee's qualifications for the job in question. Do not ask questions about the applicant's or employee's pregnancy status, children, plans to start a family, or other related issues during interviews or performance reviews.

Document decisions and explain yourself. Make sure all employment decisions are well documented and, to the extent feasible, are explained to affected persons.

Don’t set hurdles in front of accommodation. Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-related limitations, and for granting accommodations where appropriate.

Educate for the right mindset. Train managers to recognize requests for reasonable accommodation, to respond promptly to all requests, and to avoid assuming that pregnancy-related impairments are not disabilities.

Don’t reject accommodation—offer explanations and alternatives. If a particular accommodation requested by an employee cannot be provided, explain why, and offer to discuss the possibility of providing an alternative accommodation.

Marian Exall

Marian Exall (marian.exall@gmail.com) is an employment lawyer and HR professional with more than 25 years' experience advising banks and other employers on compliance issues. She is a principal and co-founder of Employment Law Compliance, Inc. which provides HR compliance solutions to banks exclusively through the American Bankers Association. She is a frequent speaker and writer on human resources compliance in the banking industry, on association briefings and webinars, and at national and state bankers' association conferences. For more information on this or other employment compliance topics, please call Employment Law Compliance at 866-801-6302 or go to www.employlawcompliance.com.

Marian also writes fiction. Her latest novel is a mystery called A Slippery Slope. For more information and to order, go to www.marianexall.com

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