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EEOC issues new guidance on pregnancy discrimination

On July 14, 2014, the U.S. Equal Employment Opportunity Commission (EEOC) issued long-awaited guidance relating to pregnancy discrimination and pregnancy-related issues. The guidance was highly anticipated in the wake of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which expanded the definition of “disability” to include any medical condition that substantially limits one or more major life activities. Prior to the ADAAA, the EEOC’s guidance had always made clear that pregnancy did not qualify as an ADA “disability” because of its temporary nature; however, in recent cases and guidance involving non-pregnancy related disabilities, the EEOC has made clear that even temporary disabilities may qualify under the ADA.

Following its recent trend, the EEOC’s new pregnancy guidance is clear that, although pregnancy itself is not a “disability,” so long as a pregnant woman is not limited in performing any major life activity, pregnancy-related limitations—for example, an inability to stand for long periods of time or to lift heavy objects—can and should be considered “disabilities” for ADA purposes. Accordingly, employers should be prepared to provide reasonable accommodation to pregnant employees if requested in the same manner and fashion as they would for any other employee with an ADA disability.

The guidance also provides interesting insight on employer leave policies, for example, the guidance discusses how employers may not require that a pregnant employee take leave at any point in her pregnancy or after childbirth, so long as the employee demonstrates that she is able to perform job responsibilities. In addition, while employers are not required to offer “parental leave,” except as required by the Family and Medical Leave Act and/or applicable state law, to the extent that “parental leave” is offered, the guidance states that it must be offered on the same terms to both men and women. For example, a policy that provides new mothers with 6 weeks of “bonding time,” while giving new fathers only 2 weeks of such time, would be considered discriminatory. The “equal time” rule does not apply to medical leave, however, so a policy that provides new mothers with 10 weeks of medical leave and both mothers and fathers with 4 weeks of “bonding time” would be permissible under the EEOC guidance.

The new guidance, which includes a number of helpful examples illustrating the often confusing interplay between the ADA, Title VII, the FMLA, and the Pregnancy Discrimination Act (PDA), can be found here.

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