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September 04, 2014 Articles

Birth of a Generation of Protections for Pregnant Employees

By Aisha Broderick

When Title VII of the Civil Rights Act was introduced in 1964, its protection for women in the workplace was limited to gender discrimination. While the law’s purpose was to ensure equal treatment, it did not completely shield women from discrimination. A certain subgroup of women—working mothers—remained unprotected from discrimination and vulnerable to an employer’s judgment about whether women should be able to take time off to deal with pregnancy-related issues or care for children once they were born.

Title VII’s protections were insufficient because the law aimed only to treat a woman as equal to a man. To challenge a Title VII discrimination allegation, an employer only had to demonstrate that it treated all employees the same. The act did not require an employer to treat a pregnant employee more favorably than a nonpregnant employee. For example, in Armindo v. Padlocker, Inc., 209 F.3d 1319, 1321 (11th Cir. 2000), the court held that an employer did not need to afford special treatment to a pregnant woman who had difficulty reporting to work. The court explained that “an employer who fires [a pregnant] employee for excessive absences, even if those absences were the result of the pregnancy,” does not commit unlawful discrimination “unless the employer overlooks the comparable absences of non-pregnant employees.” Armindo, 209 F.3d at 1320, 1322.

The Pregnancy Discrimination Act, enacted in 1978, addressed this gap in the law. Under the act, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Specifically, the act prohibits an employer from refusing to hire a woman because of her pregnancy-related condition as long as she is able to perform the major functions of her job. The act also deems unlawful discrimination based on pregnancy in other aspects of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits, firing, and any other term or condition of employment. See 42 U.S.C. § 2000e(k).

The Equal Employment Opportunity Commission’s (EEOC’s) recent update to its enforcement guidance on pregnancy-related discrimination expands protections for pregnant employees and crystallizes the interplay between the Pregnancy Discrimination Act and the Americans with Disabilities Act (ADA). Specifically, the EEOC’s update addresses a deficiency in the protections afforded by the Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978, which only treated pregnant women comparably to other employees who were unable to work because of illness. The updated guidelines now require an employer to “provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.” EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues § I.A.5. (July 14, 2014) [hereinafter Pregnancy Discrimination Guidance].

In addition, duration of a condition is also a consideration under the EEOC’s updated guidance. Specifically, the guidelines provide that “there is no requirement that an impairment last a particular length of time to be substantially limiting.” Pregnancy Discrimination Guidance, supra, § II.A. The clarification concerning durational considerations now makes it easier for women to be covered under the ADA because the related impairments qualify as limiting a major life activity. Now, the focus is on the effect of the condition instead of the cause of the condition.

The EEOC guidelines also address a woman’s previous pregnancy based on interpretations by courts that pregnancy discrimination could occur after a woman has given birth. See, e.g., Donaldson v. Am. Banco Corp., 945 F. Supp. 1456, 1464 (D. Colo. 1996). Specifically, an employer’s assumption that an employee will take leave or time off to care for the child often resulted in discrimination against new mothers. The EEOC’s guidelines now provide that “[e]mployment decisions based on such stereotypes or assumptions violate Title VII.” Pregnancy Discrimination Guidance, supra, § I.A.1.b.

Finally, the updated guidelines expand the Pregnancy Discrimination Act’s protection to women not actually pregnant based on a woman’s potential to become pregnant. The change came after the Supreme Court held in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, 499 U.S. 187 (1991), that Title VII was violated when an employer prevented women from working in jobs that exposed them to lead. Specifically, the EEOC guidance provides: “[W]omen must not be discriminated against with regard to job opportunities or benefits because they might get pregnant.” Pregnancy Discrimination Guidance, supra, § I.A.3.

The EEOC update emphasizes that pregnancy is not a barrier to a woman’s suitability for employment, but should be recognized as a condition that could affect a woman’s ability to work. The Pregnancy Discrimination Act and the EEOC update make clear that a woman’s exercise of her right to reproduce does not mean that she has given up her right to work.

Keywords: EEOC, employment discrimination, pregnancy discrimination, Title VII, working mothers

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